WNCSOS

The Howard & Lillian Lee Scholars Charter School Proposal

2012-01-11T10:00:00.000-08:00

The Howard & Lillian Lee Scholars Charter School Application

Parties pursuing education funds must first form non-profit corporations in order to qualify for North Carolina school charters. Once these five-year contracts are granted, charter school corporate boards can then align with for-profit entities for school management. The Howard & Lillian Lee Scholars Charter School application is a case in point.

In November 2011, Angela Lee, the lead applicant and her board of directors, submitted an application for the establishment of The Howard & Lillian Lee Scholars Charter School. As noted in its proposal the Board plans to contract with National Heritage Academies, Inc., a privately-held education management company, to provide its expertise for the start-up school. National Heritage Academies, Inc. was chosen for the following reasons:

—Its experience working with public charter schools in North Carolina.

—Its willingness to address the education needs of underserved children.

—The comprehensive nature of its school program, including academics as well as school culture and moral focus as a way to educate the whole child.

—The financial resources and experience it brings to the equation — i.e., facilities, real estate, start-up capital as a contribution and not a loan, and its willingness to accept the financial risk.

The Board has apprised the state that it expects to enroll 480 students for the 2012/2013 school year. If this enrollment figure is achieved, the Board will receive $3,925,910 in education funds. This by-formula revenue calculation is outlined on pages 109-112 of the application.

The National Heritage Academies, Inc. Services Agreement with The Howard & Lillian Lee Scholars Charter School Board

ARTICLE VII
FINANCIAL ARRANGEMENTS

A. Revenues. Except as provided herein, all monies received by the Board shall be deposited in the School's depository account within three (3) business days with a financial institution acceptable to the Board; provided, however, that upon receipt of a notice from NHA, the School shall pay all such The Howard & Lillian Lee Scholars Charter School funds owing under this Agreement directly to the account or party specified in such notice. Interest income earned on the School's depository account shall accrue to the School. Except as specifically excluded by this Agreement, the term "Revenues" shall include all funds received by or on behalf of the School, including but not limited to:

1. Funding for public school students enrolled at the School.

2. Special education funding provided by the federal and/or state govermnent that is directly allocable to special education students enrolled at the School.

3. Gifted and talented funding provided by the federal and/or state government that is directly allocable to gifted and talented students enrolled at the School.

4. At-risk funding provided by the federal and/or state government that is directly allocable to at-risk students enrolled at the School.

5. Funding provided by the federal and/or state government that is directly allocable to students enrolled at the School with limited English proficiency.

6. All other federal and/or state grant sources, including, but not limited to, Title I and any start-up funding allocable to the School.

7. All other grants and donations received by the School to support or carry out programs at the School (except to the extent NHA is not required or involved in soliciting, administering or managing the contribution and/or donation).

8. Fees charged to students as permitted by law for extra services approved by the Board.

D. Board Spending Account. Each school year during the Term, NHA shall pay to the Board an amount equal to the lesser of: (i) 2% of state per-pupil aid reflected in the Budget for that respective school year, or: (ii) $35,000 (the "Board Spending Account"). The aforesaid amount shall be deposited by NHA into the Board Spending Account pro-rata during the course of the School's school year as Revenues are received. All funds in the Board Spending Account are the property of the School and may be used by the School at the discretion of the Board.

National Heritage Academies, Inc. North Carolina Charter School Performance Record

National Heritage Academies, Inc. has been conducting business in North Carolina since 1999. The company has five schools under contract: Forsyth Academy, Greensboro Academy, PreEminent Charter School, Queens Grant Community School and Research Triangle Academy. Only one of these privately-managed public charter schools has met adequate yearly progress [AYP] academic standards as defined by the 2001 No Child Left Behind Act.

The No Child Left Behind education measure was a guarantee to parents that public school children in all states would be proficient in core subjects by 2013/2014.

To achieve this objective, authors of the bill established professional standards: a “highly qualified teacher” is one with full certification, a bachelor’s degree and demonstrated competence in subject knowledge and teaching.

Performance data for the listed National Heritage Academies, Inc. charter schools was obtained from the N.C. School Report Cards Web site.

Forsyth Academy Winston Salem, NC established 1999— 671 K-8 student enrollment

Forsyth Academy did not make adequate yearly progress. The number of highly qualified teachers jointly employed by National Heritage Academies, Inc. and the Board has declined to 96% from 97%.

Greensboro Academy Greensboro, NC established 1999 —720 K-8 student enrollment

Greensboro Academy made adequate yearly progress and is classified as an Honor School of Excellence. The number of highly qualified teachers jointly employed by National Heritage Academies, Inc. and the Board has declined from 100% to 94%.

PreEminent Charter School Raleigh, NC established 2000— 531 K-8 student enrollment

PreEminent Charter School did not make adequate yearly progress. The number of highly qualified teachers jointly employed by National Heritage Academies, Inc. and the Board has declined from 100% to 89%.

Queens Grant Community School Mint Hill, NC established 2002— 1233 K-12 student enrollment.

Queens Grant Community School did not make adequate yearly progress. The number of highly qualified teachers jointly employed by National Heritage Academies, Inc. and the Board remained the same, 90%.

Research Triangle Charter Durham, NC established 2000— 685 K-8 student enrollment

Research Triangle Charter did not make adequate yearly progress. The number of highly qualified teachers jointly employed by National Heritage Academies, Inc. and the Board has declined from 94% to 86%.

Credentials for North Carolina Charter School Educators as stipulated by NCGS Chapter 115C-238.29:

1. Compliance Requirement - The charter school’s board of directors shall employ and contract with necessary teachers to perform the particular service for which they are employed in the school. At least seventy-five percent (75%) of these teachers in grades kindergarten through five, at least fifty percent (50%) of these teachers in grades six through eight, and at least fifty percent (50%) of these teachers in grades nine through twelve shall hold teacher certificates.

News reports re The Howard & Lillian Lee Scholars Charter School application:

"Chapel Hill-Carrboro school board to discuss Howard and Lillian Lee charter school tonight"
News & Observer— December 15, 2011

"Eleven charter schools make the cut" The Locker Room — December 15, 2011

"Charter schools and Howard Lee: A complicated relationship" The Locker Room — December 13, 2011

The Howard & Lillian Lee Scholars Charter School Proposal to Contract with National Heritage Academies, Inc.

2012-01-11T09:32:00.000-08:00

SERVICES AGREEMENT

This SERVICES AGREEMENT (this "Agreement"), by and between National Heritage Academies, Inc., a Michigan corporation ("NHA"), and The Howard and Lillian Lee Scholars Charter School, a North Carolina non-profit corporation (the "School"), is effective the day of , 2011 (the "Effective Date"). For purposes of this Agreement, NHA and the School shall be referred to collectively as the "Parties."

RECITALS

WHEREAS, the School was issued a Charter Contract by the North Carolina State Board of Education (the "Authorizer") to operate a public charter school pursuant to N.C. Gen. Stat. § 1150-238.29 et seq. (the "Authorizing Law"); and

WHEREAS, the Parties desire to create an enduring educational alliance in which they will work together to promote educational excellence and innovation based on NIIA's school design, comprehensive educational program and management principles; and

WHEREAS, the Parties desire to set forth the terms and conditions of such alliance in this Agreement;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE I

CONTRACTING RELATIONSHIP

A. Services. Subject to the terms and conditions of this Agreement, and as permitted by applicable law, the School hereby contracts with NHA for the provision of certain educational, business administration and management services, including without limitation, all labor, equipment, and materials necessary for the provision of the same, as set forth herein (collectively, the "Services").

B. Charter. This Agreement shall: (i) be subject to and comply with the terms and conditions of the Charter Contract and the School's Charter Application (collectively, the "Charter"); and (ii) not be construed to interfere with the constitutional, statutory, or fiduciary duties of the School's Board of Directors (the `Board"). In the event of a conflict between any term or condition of this Agreement and any term or condition of the Charter, the term or condition of the Charter shall govern.

C. Independent Contractor. NHA shall provide the Services as an independent contractor, and not as an employee, partner, or associate of the School. This independent contractor relationship shall extend to the officers, directors, employees, and representatives of NHA.

D. Designation of Agents. NHA, its directors, officers, employees, agents, and representatives shall not be deemed agents of the School solely on account of this Agreement, except as follows:

1. NHA, including its directors, officers, employees and designated agents, are hereby authorized to serve as agents of the School for purposes of the Family Educational Right and Privacy Act, 20 U.S.C. § 1232g et seq. (FERPA), and are designated as "other School Officials having a legitimate educational interest in education records," such that they are entitled to access the education records of the School.

2. NHA, its directors, officers, employees, and agents may be designated as agents of the School by a written resolution of the Board or by a properly authorized officer of the School.

ARTICLE II

TERM & TERMINATION

A. Term. This Agreement shall commence on the Effective Date, and unless terminated as set forth herein, shall continue until the termination or expiration of the Charter, including any reauthorizations or renewals thereof (the "Term"). The first school year of this Agreement shall commence on July 1, , and end on June 30, , and each school year thereafter shall commence on July 1 and end on June 30 of the following year.

B. Termination.

1. NHA may terminate this Agreement prior to the end of the Tern if the Board fails to remedy a material breach of this Agreement within thirty (30) days after receiving a notice from NHA of such breach. For purposes of this Subsection, a material breach includes, but is not limited to: (i) NHA's failure to timely receive any compensation or reimbursement required by this Agreement; or (ii) a suspension, revocation, or non-renewal of the Charter.

2. The School may terminate this Agreement prior to the end of the Term if NHA fails to remedy a material breach of this Agreement within (30) days after receiving a notice from the School of such breach. For purposes of this Subsection, a material breach includes, but is not limited to: (i) NHA's failure to account for expenditures or pay operating costs pursuant to the Budget (as defined below); (ii) NHA's failure to follow policies, procedures, rules, regulations or curriculum adopted by the Board, provided they do not violate the Charter, applicable law, or this Agreement; (iii) a receipt by the Board of an unsatisfactory report from NHA or an independent education consultant retained by the Board regarding the Services or the School's performance, provided such report cannot be adequately corrected or explained; (iv) a determination that this Agreement or its implementation would serve as grounds for suspension, revocation, or non-renewal of the Charter; or (v) a determination that this Agreement or its implementation would jeopardize material tax exemptions of the School or its non-profit status.

3. Either party may terminate this Agreement prior to the end of the Term, with or without cause, by providing the other party with ninety (90) days prior written notice.

4. If this Agreement is terminated prior to the end of the Term, and unless otherwise agreed by the Parties, such termination will not become effective until the end of the then-current school year.

C. Effect of Termination. Upon the effective date of termination or expiration of this Agreement:

1. NHA shall have the right to remove any equipment or other assets owned or
leased by NHA from the School;

2. the School shall pay or reimburse NHA through the fee (as defined below) for the prepaid portion of any expenses or liabilities incurred by NHA pursuant to the Budget as of the date of such termination or expiration, provided NHA supplies the School with documentation of all such expenses and liabilities;

3. NHA may, in its sole discretion, assist the School for a reasonable amount of time, not to exceed ninety (90) days, and for a reasonable fee, with the School's transition to another administrative or managerial arrangement;

4. NHA shall reasonably assist the School in the execution of a closure plan and cooperate in the closure process, including without limitation, in any audits and court or other proceedings related thereto; and

5. the party to whom Confidential Information (as defined below) has been disclosed shall, upon request and at the direction of the disclosing party: (i) return such Confidential Information within thirty (30) days, including any copies thereof, and cease its use; or (ii) destroy such Confidential Information and certify such destruction to the disclosing party, except for a single copy thereof which may be retained for the sole purpose of determining the scope of any obligations incurred under this Agreement.

ARTICLE III

OBLIGATIONS OF NHA

A. Manager at Risk. NHA shall be responsible and accountable to the Board for providing the Services. During the Term, NHA shall provide the Services regardless of whether actual revenue meets the level projected in the Budget, and NHA hereby assumes the risk of funding shortfalls during the Term. Notwithstanding the foregoing, NHA shall not be required to expend funds on Services in excess of the amount set forth in the Budget.

B. Comprehensive Educational Program. The School has determined to adopt NHA's proprietary educational and academic programs and goals, as set forth in the Charter (the "Educational Program"). Subject to the oversight of the Board, NHA shall implement and administer the Educational Program. In the event that NHA reasonably determines that it is necessary or advisable to make material changes to the Educational Program, NHA shall inform the Board of the proposed changes and obtain the Board's approval before making such changes, as well as the Authorizer's approval if required by the Charter or applicable law. The Parties acknowledge and agree that an essential principle of the Educational Program is its flexibility, adaptability and capacity to change in the interest of continuous improvement and efficiency. Not less than annually or as requested by the Board, NHA shall provide the Board with a report detailing progress made on each of the educational goals set forth in the Educational Program.

C. All Children Welcome. NHA places a high value on diversity, and the School shall welcome students of all races, ethnicity, religion, gender and economic backgrounds.

D. Services to Students with Disabilities. NHA welcomes students with disabilities at the School. NHA shall provide special education and related services, in conformity with the requirements of applicable law, to students who attend the School.

E. Educational and Administrative Services. Subject to the oversight of the Board, NHA shall implement operational practices that are consistent with Board policy, the Charter and applicable law. Such practices shall include, but are not limited to:

1. Student recruitment and admissions.

2. Student assessments, including testing and promotion.

3. The acquisition of instructional materials, equipment and supplies, and the administration of any and all extra-curricular and co-curricular activities and programs included in the Budget.

4. Employment of personnel working at the School and management of all personnel functions, as set forth herein.

5. All aspects of the School's business administration.

6. All aspects of the School's accounting operation, including general ledger management, financial reporting, payroll, employee benefits and payroll tax compliance.

7. Food services and facilities maintenance.

F. Location of Services. Other than instruction, and unless prohibited by the Charter or applicable law, NHA may provide the Services, including but not limited to, purchasing, professional development and administrative services, off-site.

G. Subcontracts. NHA reserves the right to subcontract any and all aspects of the Services.

H. Pupil Performance Standards and Evaluation. NHA shall implement pupil performance evaluations that permit evaluation of the academic progress of each School student. NHA shall utilize assessment strategies required by the Charter and applicable law. The Board and NHA shall cooperate in good faith to identify academic goals and methods to assess such academic performance.

I. Unusual Events. NHA shall timely notify the Board and the Administrator (as defined below) of any anticipated or known material: (i) health or safety issues; (ii) labor, employee or funding issues; or (iii) other issues that may reasonably and adversely impact the School's ability to comply with the Charter, applicable law or this Agreement.

J. School Records. The financial and education records pertaining to the School (collectively, the "School Records"), are property of the School. Except as may be prohibited or limited by the Charter or applicable law, the School Records shall be available to the Board and the Authorizer for their review, and are subject to inspection and copying to the same extent that records of public schools are subject to inspection and copying pursuant to applicable law. All School Records shall be physically or electronically available upon request at the School's physical facility.

K. Facility. NHA shall use reasonable efforts to secure a facility to be leased or otherwise provided to the School on terms mutually agreeable to NHA and the Board. The facility shall comply with the requirements of the Charter. NHA shall also use reasonable efforts to cause the facility to be furnished with equipment and technology as is reasonably necessary to implement the Educational Program.

L. Legal Compliance. NHA will implement and enforce rules, regulations and procedures applicable to the School that are consistent with adopted Board policy, and the Educational Program in accordance with the Charter and applicable law, including without limitation, rules, regulations,and policies regarding discipline, special education, confidentiality and access to records.

M. Rules and Procedures. NHA will recommend to the Board reasonable rules, regulations, policies and procedures applicable to the School. The Board hereby authorizes and directs NHA to enforce such rules, regulations and procedures adopted by the Board.

ARTICLE IV

OBLIGATIONS OF THE BOARD

A. Good Faith. The Board shall be responsible for the fiscal and academic policies of the School. The Board shall exercise good faith in considering the recommendations of NHA, including but not limited to, NHA's recommendations regarding policies, rules, regulations and the Budget.

B. Assistance to NHA. The Board shall cooperate with NHA and, to the extent consistent with applicable law, timely furnish NHA all documents and information necessary for NHA to properly perform its responsibilities under this Agreement.

C. Unusual Events. The Board shall timely notify NHA of any anticipated or known material: (i)health or safety issues; (ii) labor, employee or funding issues; or (iii) other issues that may reasonably and adversely impact NHA's ability to comply with the Charter, applicable law, or this Agreement.

D. Office Space. Upon request by NHA, the Board shall provide NHA with suitable office space at the School, provided the requested space is: (i) available and can be provided without materially prejudicing the Educational Program; and (ii) used only for activities related to the School. The space shall be provided at no cost to NHA.

E. Board Authority. Consistent with applicable law, the Board shall have final authority to adopt reasonable rules, regulations, and policies regarding the establishment, maintenance, management, and operation of the School.

ARTICLE V
INTELLECTUAL PROPERTY

A. Definitions.

1. "Educational Materials" means all curriculum, print and electronic textbooks, instructional materials, lesson plans, teacher guides, workbooks, tests, and other curriculum-related materials licensed, developed or otherwise owned by the School or NHA.

2. "Confidential Information" means any confidential and non-public trade, technical or business knowledge, information and materials regarding the School or NHA (or their respective affiliates), which is given by one party to the other, or any of their respective representatives, in any form, whether printed, written, oral, visual, electronic or in any other media or manner. Confidential Information includes, but is not limited to, research, operations and procedures, financial projections, pricing, sales, expansion plans and strategies, services data, trade secrets and other intellectual property, or the results of any mediation or private adjudication, as well as information with respect to each party's or its affiliates' plans for market expansion, except for information which a party can show by contemporaneous written records was developed or formulated independently of work or services performed for, or in connection with performance of, this Agreement. Notwithstanding the foregoing, the disclosure of the other party's Confidential Information as required to be disclosed by law, rule or regulation or by reason of subpoena, court order or government action shall not constitute a breach of this Agreement; however, in such event the party required to disclose such information will reasonably cooperate with the party whose information is required to be disclosed in order to obtain a protective order applicable to such disclosure. All Confidential Information will remain the sole property of the party disclosing such information or data.

B. School Materials. The School shall own all right, title and interest in and to Educational Materials that are: (i) licensed or owned by the School as of the Effective Date; or (ii) licensed, developed, characterized, conceived, derived, generated, identified, or otherwise made by the School during the Term, provided such materials do not reference the NHA Materials (as defined below), or incorporate any Confidential Information of NHA (collectively, the "School Materials"). The School Materials shall include all intellectual property rights associated therewith.

C. NHA Materials. NHA shall own all right, title and interest in and to Educational Materials that are: (i) licensed or owned by NHA as of the Effective Date; (ii) licensed, developed, characterized, conceived, derived, generated, identified, or otherwise made by NHA during the Term, provided such materials do not reference School Materials or incorporate any Confidential Information of the School; and (iii) any and all Educational Materials and non-curriculum materials provided to the School by NHA relating to the Educational Program, including all changes and derivatives thereof (collectively, the "NHA Materials").

D. Derivative Works. The Parties acknowledge that to the extent any Educational Materials created by the School are derivative of the NIIA Materials, use of such derivative materials during the Term is subject to the license granted herein, and the license to use such derivative materials shall cease as of the date of expiration or termination of this Agreement.

E. No Transfer or Sale. The School acknowledges and agrees that NIIA is not transferring or selling, and the School is not receiving, purchasing or acquiring, any intellectual property or proprietary rights in or to the NHA Materials.

F. Licenses. NHA hereby grants the School a non-exclusive, non-transferable license (without the right to sublicense) to use the NHA Materials, and any Educational Materials created by the School which are derivative of the NHA Materials, solely in furtherance of the Educational Program during the Term, including without limitation, the right to reproduce, publicly display, distribute and create derivative works of the same, in hard copy format or electronically, within the United States. The School represents and warrants that during the Term, and following the expiration or termination of this Agreement, the School will not exploit or assist any third party exploit any of the NHA Materials for commercial purposes. Subject to applicable law, the School grants NHA a nonexclusive,
irrevocable, worldwide, assignable right to use, distribute, modify and display the School Materials, solely for educational purposes in any and all media now know or hereafter developed.

G. NHA Marks. During the Tenn, NHA grants the School a non-exclusive, revocable, nontransferable license (without the right to sublicense) to use NHA's trade name(s) and NHA's trademark(s) (the "NHA Marks") solely for the purposes of promoting and advertising the School. NHA shall have the opportunity to review and approve all artwork, copy or other materials utilizing the NHA Marks prior to any production or distribution thereof. All uses of the NHA Marks require NHA's prior written permission. The School shall acquire no rights in or to the NHA Marks, and all goodwill associated with the NHA Marks shall inure to the benefit of and remain with NHA. Upon expiration or termination of this Agreement, the School shall immediately discontinue use of the NHA Marks and shall remove the NHA Marks from its locations, vehicles, websites, telephone directory listings and all other written or electronic promotional materials.

H. Assignment. Each party shall, and hereby does assign to the other, with full title guarantee and without additional compensation, such right, title and interest in and to any intellectual property as is necessary to fully affect the ownership provisions set out herein, and any accrued rights of action in respect thereof Each party shall, if so requested by the other, execute all such documents and do all such other acts and things as may be reasonably required to comply with this Agreement to vest in the appropriate party all rights in the relevant intellectual property and shall procure execution by any named inventor of all such documents as may reasonably be required by the other party in connection with any related patent application.

ARTICLE VI
SOLICITATION AND USE OF PRIVATE FUNDS

NHA shall seek the Board's approval prior to soliciting any non-governmental grants, donations or contributions on behalf of the School. Any such funds received shall be used solely in accordance with the purpose for which they were solicited, applicable donor restrictions, or as otherwise approved by the Board. Subject to applicable donor restrictions, the Board shall determine the allocation of any such funds subject to this Article that remain unexpended following completion of the project or purpose for which they were originally designated.

ARTICLE VII
FINANCIAL ARRANGEMENTS

A. Revenues. Except as provided herein, all monies received by the Board shall be deposited in the School's depository account within three (3) business days with a financial institution acceptable to the Board; provided, however, that upon receipt of a notice from NHA, the School shall pay all such funds owing under this Agreement directly to the account or party specified in such notice. Interest income earned on the School's depository account shall accrue to the School. Except as specifically excluded by this Agreement, the teen "Revenues" shall include all funds received by or on behalf of the School, including but not limited to:

1. Funding for public school students enrolled at the School.

2. Special education funding provided by the federal and/or state govermnent that is directly allocable to special education students enrolled at the School.

3. Gifted and talented funding provided by the federal and/or state government that is directly allocable to gifted and talented students enrolled at the School.

4. At-risk funding provided by the federal and/or state government that is directly allocable to at-risk students enrolled at the School.

5. Funding provided by the federal and/or state government that is directly allocable to students enrolled at the School with limited English proficiency.

6. All other federal and/or state grant sources, including, but not limited to, Title I and any start-up funding allocable to the School.

7. All other grants and donations received by the School to support or carry out programs at the School (except to the extent NHA is not required or involved in soliciting, administering or managing the contribution and/or donation).

8. Fees charged to students as permitted by law for extra services approved by the Board.

The expenditure of any Revenues received from governmental entities shall be consistent with all applicable regulations and policies. The expenditure of any Revenues received from nongovernmental grants, contributions and donations shall be made consistent with the provisions of Article VI.

B. Budget. NHA shall provide the Board with an annual proposed Budget prepared and maintained in accordance with the Charter and applicable law (the "Budget"). For the School's first school year, the Budget shall be submitted prior to the beginning of the school year. Thereafter, the proposed Budget shall be submitted to the Board prior to June 1 for the next school year.

C. Review and Approval of Budget. The Board shall be responsible for reviewing and approving the Budget in accordance with the Charter and applicable law. At the direction of either NHA or the Board, with the approval of the Board, the Budget shall be amended from time to time as necessary.

D. Board Spending Account. Each school year during the Term, NHA shall pay to the Board an amount equal to the lesser of: (i) 2% of state per-pupil aid reflected in the Budget for that respective school year, or: (ii) $35,000 (the "Board Spending Account"). The aforesaid amount shall be deposited by NHA into the Board Spending Account pro-rata during the course of the School's school year as Revenues are received. All funds in the Board Spending Account are the property of the School and may be used by the School at the discretion of the Board. Funds in the Board Spending Account that are not spent by the School during the school year shall carryover to the School's next school year. Items purchased by NHA for the School and paid for by the School with funds from the Board Spending Account, such as non-proprietary instructional and/or curriculum materials, books, supplies and equipment, shall be the property of the School. The property of the School excludes items leased, financed or purchased by NHA with the Fee (as defined below). NHA agrees not to add any fees or charges to the cost of equipment, materials or supplies purchased by NHA on behalf of the School with funds from the Board Spending Account. NHA, in making such purchases for the School pursuant to this subsection, shall comply with applicable law, as if the School were making such purchases itself from a third party, and shall provide the Board, upon request, available documentation evidencing the costs associated with such purchases.

E. Fee. NHA shall receive all Revenues as its services fee (the "Fee"), from which it shall pay all operating costs of the School, as detailed in the Budget. Payment of the Fee shall be made on the same frequency that the School receives its Revenues. NHA shall be entitled to retain as compensation for the Services the difference, if any, between the Fee and the amount actually expended by NHA in operation and/or management of the School during the School's fiscal year.

F. No Loans. NHA shall not make or extend loans to the Board.

G. Other Schools. The School acknowledges that NHA has entered into similar services agreements with other schools. NHA shall maintain separate accounts for expenses incurred in the operation of the School and other schools assisted by NHA, and shall reflect in the School's financial records only those expenses incurred in the operation of the School. If NHA incurs expenses that are for both the benefit of the School and other schools managed by NHA, then NHA shall allocate, to the extent permitted by law, such expenses among all such affected schools, including the School, on a prorated basis based upon the number of enrolled students, the number of classrooms, or the number of teachers at the affected schools, or on such other equitable basis as is reasonably determined by NHA. In no event shall marketing costs incurred solely for the benefit of NHA (and not the School) be allocated to the School.

H. Financial Reporting. NHA shall provide the Board with:

1. Annually, the Budget as required by this Agreement.

2. Quarterly, or as reasonably requested by the Board, a Statement of Revenues, Expenditures and Changes in Fund Balance, which: (i) details year-to-date Revenues received and expenses incurred; (ii) compares such Revenues and expenses to the Budget; and (iii) provides an explanation of any resulting variances.

3. Quarterly, or as reasonably requested by the Board, a report on School operations and student performance.

4. As reasonably requested, other information to enable the Board to: (i) evaluate the quality of the Services; and (ii) timely provide all reports and information that are required by the Charter and applicable law.

I. Access to Financial Records. NHA shall keep accurate financial records pertaining to its operation of the School, together with all School financial records prepared by or in possession of NHA, and shall retain all of the aforereferenced records according to the Charter and applicable law to which such books, accounts, and records relate. NHA and the Board shall maintain the proper confidentiality of personnel, students, and other records as required by law.

J. Accounting Standards; Annual Audit.

1. The School shall at all times comply with generally accepted public sector accounting principles and accounting system requirements that comply with applicable law.

2. An independent auditor will conduct an annual audit of the School's financial matters in accordance with the Charter and applicable law.

3. Subject to applicable law, all records in the possession or control of NHA that relate to the School, including but not limited to, financial records, shall be made available to the School and the School's independent auditor. The expense of the annual audit shall be included in the Budget.

K. Start-up Funds; Contributions. NHA shall provide start-up funds for: (i) the development of curriculum, a technology system and a school operations plan; (ii) recruiting, selecting and training of staff members; and (iii) to the extent necessary as reasonably determined by NHA, cleaning, renovating and equipping of the School facility (the "Start-Up Funds"). In addition, in its sole discretion, NHA may, but need not, make contributions to the School in the event School expenses exceed Revenues (the "Contributions"). The Contributions, if any, shall be in amounts acceptable to NHA and the Board and, once made, shall be included in the Budget. Unless otherwise agreed, the School shall not be legally obligated to repay NHA for the Start-Up Funds or the Contributions. NHA's agreement to make such Contributions shall not be deemed to negate or mitigate the need for the School to apply for or solicit state or federal start-up funds, grants or sub-grants which the School, as a public school, may be eligible to receive.

ARTICLE VIII
PERSONNEL & TRAINING

A. Qualified Personnel. NHA shall select, hire, evaluate, assign, discipline, transfer, and terminate School personnel pursuant to the Budget, the Charter and applicable law. With the exception of teachers, as set forth below, and unless otherwise agreed by the written consent of the Parties, all School personnel shall be employees of NHA. NHA and the Board shall each be responsible for their respective employees. However, compensation of all employees working at the School shall be included in the Budget. At the request of the Board, NHA shall disclose to the Board the level of compensation and fringe benefits provided by NHA to NHA employees working at the School.

B. School Administrator. The School administrator (the "Administrator") shall be an employee of NHA and not the Board. The duties and terms of the Administrator's employment shall be determined by NHA. The Administrator shall work with NHA in the operation and management of the School. The accountability of NHA to the School is an essential foundation of this Agreement. Since the Administrator is critical to the School's success, NHA shall have the authority, consistent with this Article, to select, hire, evaluate, assign, discipline, transfer and terminate the Administrator,
and to hold the Administrator accountable for the performance of the School. Without limiting the foregoing, NHA agrees that it shall consult with the Board prior to the hiring or termination of the Administrator.

C. Teachers. The Administrator shall recommend to the Board for its consideration and approval, teachers who are qualified in the grade level and subjects required by the School to operate in
accordance with the terms of the Charter. All teachers shall be jointly employed by the School and
NHA for such purposes as inclusion in the compensation and employee benefit plans of NHA, payroll administration and other employment policies and practices; provided however, in all circumstances, the Board shall ultimately control the hiring and discharge decisions with respect to jointly employed teachers at the School in accordance with N.C. Gen. Stat. § 115C-238.29(F)(e)(1). Teachers assigned to and retained by the School shall hold a valid teaching certificate issued by the State Board of Education to the extent required by N.C. Gen. Stat. § 115C-238.29F(e)(1). Subject to the approval of the Board, such teachers may, in the discretion of NHA, work at the School on a full or part-time basis. If assigned to the School on a part-time basis, such teachers may also work at other schools for which NHA
provides services under a similar agreement.

D. Support Staff. NHA shall, consistent with this Article, provide the School with qualified support staff as needed to operate the School in an efficient manner. The support staff may, at the discretion of NHA, work at the School on a full or part-time basis. If assigned to the School on a part-time basis, the support staff may also work at other schools managed or operated by NHA. The cost for such support staff shall be shared proportionately among the schools at which the support staff is working. An
individual who provides a service to students in the School that is not teaching, and for which a license is required under applicable law, will have the appropriate license to provide such services.

E. Training. NHA shall provide or procure training in its methods, curriculum, program, and technology to all teaching personnel on a regular basis. Instructional personnel shall be required to obtain at least the minimum hours of professional development as required by applicable law. Noninstructional personnel shall receive training as NHA determines reasonable and necessary under the circumstances.

F. Background Checks and Qualifications. NHA shall comply with applicable law regarding background checks, unprofessional conduct searches and certification/licensure, as applicable, for all persons working in the School.

G. Terms of Employment. No member of the staff at the School shall be subject to any covenant not to compete or other employment restriction as part of the terns of his or her employment with NHA for the Services.

H. Limitations on Discretion. All decisions made by NHA, and any discretion exercised by NHA, in its selection, hiring, evaluation, assigmnent, discipline, transfer, and termination of personnel, shall be consistent with the Budget, the Charter, the parameters adopted and included in the Educational Program, and applicable law.

ARTICLE IX
INDEMNIFICATION AND LIMITATION OF LIABILITY

A. Indemnification. To the extent not prohibited by the Charter or applicable law, the Parties hereby agree to indemnify, defend, and hold the other (the "Indemnified Party"), harmless from and against any and all third-party claims, actions, damages, expenses, losses or awards which arise out of the gross negligence or intentional misconduct of the indemnifying party. As used herein, Indemnified Party shall include the party's trustees, directors, officers, employees, agents,representatives and attorneys. The Parties may purchase general liability, property or other insurance policies. Notwithstanding anything in this Agreement to the contrary, the Board shall not be precluded by the terms of this Agreement from asserting or declining to assert a claim of governmental immunity.

B. Limitation of Liability. Neither party shall be liable for special, punitive, exemplary, incidental or consequential damages due to any breach of this Agreement or any action or omission by such Party.

ARTICLE X
INSURANCE

A. Insurance Coverage. NHA shall maintain such policies of insurance as required by the Charter and applicable law. In addition, NHA shall maintain an umbrella liability policy of not less than Two Million Dollars ($2,000,000.00), or such greater amount if required by the Charter or applicable law. Each party shall maintain general liability insurance in the amount of One Million Dollars ($1,000,000.00) per occurrence, or such greater amount if required by the Charter or applicable law, with the other party listed as an additional insured. The School shall maintain insurance on its facility and related capital items leased by the School, all as required by the terms of the School's lease(s). Each party shall, upon request, present evidence to the other that it maintains the requisite insurance in compliance with the provisions of this Article. Each party shall comply with any information or reporting requirements required by the other party's insurer(s), to the extent reasonably practicable.

B. Workers' Compensation Insurance. Each party shall maintain workers' compensation insurance as required by law, covering their respective employees.

ARTICLE XI

REPRESENTATIONS & WARRANTIES

A. Board and School. The Board represents and warrants, for itself and on behalf of the School, that: (i) it is legally vested with all power and authority necessary to operate a charter school under the Authorizing Law; (ii) it is legally vested with all power and authority necessary to execute, deliver and perform this Agreement, including without limitation, the power and authority to contract with a private entity for the provision of educational, business administration and management services; (iii) its actions have been duly and validly authorized, and it has adopted any and all resolutions or expenditure approvals required for the execution of this Agreement; and (iv) there are no pending actions, claims, suits or proceedings, or, to its knowledge, threatened or reasonably anticipated against or affecting either the Board or the School, which if adversely determined, would have a material adverse effect on its ability to perform under this Agreement.

B. NHA. NHA represents and warrants that: (i) it is a corporation in good standing and is authorized to conduct business in the State of North Carolina; (ii) there are no pending actions, claims, suits or proceedings, or, to its knowledge, threatened or reasonably anticipated against or affecting NHA, which if adversely determined, would have a material adverse effect on its ability to perform its obligations under this Agreement; and (iii) it will comply with all registration and licensing requirements relating to conducting business under this Agreement, which the Board agrees to assist NHA in applying for such licenses and permits and in obtaining such approvals and consents.

ARTICLE XII
MISCELLANEOUS

A. Entire Agreement. This Agreement and any attachments hereto shall constitute the entire agreement of the Parties on the subject matter set forth herein. This Agreement supersedes and replaces any and all prior agreements and understandings regarding the subject matter set forth herein between the School and NHA.

B. Force Majeure. Except for payment obligations, and notwithstanding any other provisions of this Agreement, neither party shall be liable for any delay in performance or inability to perform due to acts of God, war, riot, embargo, fire, explosion, sabotage, flood, accident, labor strike, or other acts beyond its reasonable control; provided either party may terminate this Agreement in accordance with provisions contained herein if sufficient grounds exist as provided in the Article governing termination.

C. State Governing Law; Waiver of Jury Trial. This Agreement shall be construed, interpreted, governed and enforced pursuant to the laws of the State of North Carolina, without regard to its conflicts-of-laws principles. The Parties hereby waive the right to a jury trial in any action, proceeding or counterclaim brought by either NHA or the School against the other.

D. Notices. All notices and other communications required by this Agreement shall be in writing and sent to the Parties at the facsimile number or address set forth below. Notice may be given by:(i) facsimile, with written evidence of confined receipt by the receiving party of the entire notice; (ii) certified or registered mail, postage prepaid, return receipt requested; or (iii) personal delivery. Notice shall be deemed to have been given on the date of transmittal if given by facsimile, upon the date of postmark if sent by certified or registered mail, or upon the date of delivery if given by personal
delivery. For purposes of the foregoing, "personal delivery" shall include delivery by nationally recognized overnight courier (such as FedEx), if signed for by the recipient or a delegate thereof. Notices to the School shall be sent to the current address of the then-current Board Chair, with a copy to the then-current Board attorney. The addresses of the Parties for the purposes aforesaid, including the address of the initial Board Chair, are as follows:

The School:
Attn: Chair, Board of Directors
Telephone:
Facsimile:

WITH A COPY TO:
Telephone:
Facsimile:

NHA: National Heritage Academies, Inc.
Attn: Chief Financial Officer
3850 Broadmoor, S.E. Ste. 201
Grand Rapids, Michigan 49512

Telephone: (616) 222-1700
Facsimile: (616) 222-1701

WITH A COPY TO:
Telephone:
Facsimile:

E. Assignment. NHA may assign this Agreement with the prior written approval of the Board, which written approval shall not be unreasonably withheld or delayed.

F. Amendment. This Agreement shall not be altered, amended, modified or supplemented except by memorandum approved by the Board and signed by both an authorized officer of the School and NHA.

G. Waiver. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision. Nor shall such waiver constitute a continuing waiver unless otherwise expressly stated.

H. Severability. If any tern or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terns and provisions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term or provision.

I. Delegation of Authority. Nothing in this Agreement shall be construed as delegating to NHA powers or authority of the Board which are not subject to delegation by the Board under the Charter or applicable law.

J. Compliance with Law. Each party will comply with the Charter and laws applicable to the performance of such party's obligations hereunder.

K12, Inc. Pursues North Carolina Education Funds

2011-12-27T04:30:00.000-08:00

K12, Inc.

K12, Inc., [NYSE:LRN] the promoter of virtual education programs, has submitted an application to establish a statewide academic network in North Carolina. If the North Carolina Virtual Academy School is approved, K12, Inc., will have an entree to state and local education agency [school district] funds. A North Carolina student is worth approximately $6,753 according to K12, Inc. business plan application. K12, Inc. expects to enroll 2,750 students in the coming year.

Educations funds cannot be paid directly to for-profit companies, so interested parties create closely-related entities to circumvent the rules. K12, Inc. intends to register North Carolina Learns, Inc. as its non-profit partner. The financial plan, as outlined in the application, is as follows: North Carolina Learns, Inc., the recipient of state education money then pays K12, Inc. for its services by way of a Educational Products and Services contract.

North Carolina Learns Inc. and the K12 Virtual Schools LLC Financial Arrangement

The cosignatories, North Carolina Learns, Inc, a non-profit benefit company and Virtual Schools LLC, a Delaware limited liability company, agree that if the North Carolina Virtual Academy venture is profitable the amount due K12 will be determined as follows:

i. Of the first $100,000 or less of the Positive Net Asset Position, the amount due K12 will be 25% of such amount, not to exceed $25,000.

ii. Of the second $100,000 or less of the Positive Net Asset Position, if any, the amount due K12 will be 50% of such $100,000 or $50,000. The amount due K12 will not exceed $75,000, for the first $200,000 of Positive Net Assets.

iii. If the Positive Net Asset Position exceeds $200,000 the amount due K12 will be 75% of the amount over $200,000 plus the $75,000 noted in the point immediately above.

K12, Inc. Investor Alert

2011-12-26T20:23:00.000-08:00

K12, Inc.

Wall Street interests founded the K12-virtual school concept in 2000. This business venture, financed by investors and public education funds, was operating without much controversy until The New York Times raised the question of academic benefit.

The December 12, 2011 Times report— “Profits and Questions at Online Charter Schools,"— had immediate repercussions: K12, Inc. stock [NYSE:LRN] dropped more than 20%.

Four days later Faruqi & Faruqi LLP, a securities law firm, opened a K12, Inc. probe re potential federal securities law violations. The question: Have K12, Inc. and its executives violated federal securities laws by failing to disclose material information revealed in The New York Times article?

Research on the part of The Times indicates that the K12, Inc. education model is deficient because a significant number of its virtual charter school students are not able to meet academic standards.

K12, Inc. unresolved concerns: Improper recruitment, abnormal withdrawal rates, false advertising and corporate pressure to pass students without regard to academic achievement.

Other pertinent information reported by The Times: K12, Inc. spent $26.5 million on advertising its virtual school product in 2010 and during promotional investment events, K12, Inc. estimates that it expects to generate $15 billion in potential revenue.

The K12, Inc. North Carolina Virtual Charter School Proposal

2011-12-23T19:02:00.000-08:00

K12, Inc.

K12 Inc., the purveyor of multi-state on-line virtual charter school programs, plans to establish a presence in North Carolina by aligning its interests with those of the Cabarrus County School Board. The K12 Inc. business plan was offered to school board officials, the chartering entity, on November 1, 2011. For its efforts, the school board will receive a 3% administration fee.

General Assembly Support for Virtual Charter Schools

The K12, Inc. note of appreciation:

In 2011, the North Carolina legislature, with the passage of Senate Bill 8, gave unlimited numbers of students and families in the state the choice of a public charter school education. The cap on charter schools imposed by the North Carolina Charter Schools Act passed in 1996 created a pent up demand for charter schools for over fifteen years based on the availability of just 99 approved charter schools—only 4% of the public schools in the state--until the 2010-2011 school year. After the passage of Senate Bill 8, the North Carolina Department of Education created the opportunity to quickly alleviate the pent up demand for charter schools by offering an expedited charter school application process this year, using a “Fast Track Application” and compressing the “planning year” to about seven months. We are submitting our North Carolina Virtual Academy “Fast Track” charter application for approval to chartering entity Cabarrus County Schools.

A second piece of legislation enacted this year, the Appropriations Act of 2011, acknowledges the opportunity in North Carolina for a “virtual” charter school Currently this type of charter school does not exist in the state. Conforming to state charter school law (§ 115C-238(A)-(K)), it will be a free-standing, diploma-granting public school for students in grades kindergarten through twelfth grade.

The company's pending, Department of Education, charter application for the North Carolina Virtual Academy would allow K12 Inc. access to funds and permit avoidance of for-profit rules by the establishment of a non-profit conduit entity. [proposed corporate name: North Carolina Learns, Inc.]

K12, Inc. intentions as recorded in its 299-page application:

... North Carolina Learns Inc. (proposed) shall be organized as an independent North Carolina corporation doing business as the “North Carolina Virtual Academy” (hereinafter referred to as the “School”). The purpose of the corporation is to maintain and operate the North Carolina Virtual Academy School as a not-for-profit enterprise. The corporation also has such powers as are now or may hereafter be granted by the §55A-2-02 of the General Statues of the State of North Carolina. It shall be the policy of the Board of Directors and the School not to discriminate in admissions and hiring practices in violation of the law. The purpose of the School is to provide a quality education to children in the Cabarrus County area and throughout the state of North Carolina.

Credentials for North Carolina Charter School Educators as stipulated by NCGS Chapter 115C-238.29:

1. Compliance Requirement - The charter school’s board of directors shall employ and contract with necessary teachers to perform the particular service for which they are employed in the school. At least seventy-five percent (75%) of these teachers in grades kindergarten through five, at least fifty percent (50%) of these teachers in grades six through eight, and at least fifty percent (50%) of these teachers in grades nine through twelve shall hold teacher certificates

.
North Carolina Learns, Inc/K12 Virtual Schools LLC Financial Arrangement aka the Educational Products and Services Agreement

The cosignatories, North Carolina Learns, Inc, a non-profit benefit company and Virtual Schools LLC, a Delaware limited liability company, agree that if the North Carolina Virtual Academy venture is profitable the amount due K12 will be determined as follows:

i. Of the first $100,000 or less of the Positive Net Asset Position, the amount due K12 will be 25% of such amount, not to exceed $25,000.

ii. Of the second $100,000 or less of the Positive Net Asset Position, if any, the amount due K12 will be 50% of such $100,000 or $50,000. The amount due K12 will not exceed $75,000, for the first $200,000 of Positive Net Assets.

iii. If the Positive Net Asset Position exceeds $200,000 the amount due K12 will be 75% of the amount over $200,000 plus the $75,000 noted in the point immediately above

A North Carolina student is worth approximately $6,753 according to the K12, Inc filing.

K12, Inc. Legal Issues

Wall Street interests founded the virtual school-K12 concept in 2000. This business venture, financed by public education funds, was operating without much issue until The New York Times raised the question of academic benefit.

The December 13, 2011 Times report— “Profits and Questions at Online Charter Schools,"— had immediate repercussions: K12, Inc. stock prices dropped more than 20%.

Three days later Faruqi & Faruqi LLP, a securities law firm, opened a K12, Inc. federal securities fraud investigation. The question: Has K12, Inc. and its executives violated federal securities laws by failing to disclose material information revealed in The New York Times article?

Research on the part of The Times indicates that the K12, Inc. education model is deficient because a significant number of its virtual charter school students are not able to meet academic standards.

K12, Inc. unresolved concerns: Improper recruitment, abnormal withdrawal rates, false advertising and corporate pressure to pass students without regard to academic achievement.

Other pertinent information reported by The Times: K12, Inc. spent $26.5 million on advertising its virtual school product in 2010 and during promotional investment events, K12, Inc. estimates that it expects to generate $15 billion in tax-payer revenue.

Related Articles & the K12, Inc. Investor News Release

K12, Inc. Investor News Release: "The New York Times article featuring K12 Inc. (NYSE: LRN) is unfair and one-sided, and advances an anti-parent choice policy agenda."

"Virtual schools are multiplying, but some question their educational value" Washington Post— November 26, 2011

"Virtual Learning and Charter Schools: Issues and Potential Impact" —William R. Thomas

"How Online Learning Companies Bought America's Schools" The Nation —December 5, 2011

"Questionable company targets NC for virtual charter school" NC Policy Watch—December 16, 2011

"Can Computers Replace Classrooms?" The Fiscal Times—November 27, 2011

"Virtual School is $3 million short" The News & Observer— November 22, 2011

Buncombe County, NC Mountain Real Estate Landslide Vulnerability Report

2011-12-10T17:35:00.000-08:00

Western North Carolina landslide photo — SouthWings flyover 2010

Western North Carolina Mountain Real Estate Caveats

Twenty-three Western North Carolina counties, including Buncombe, are on the Federal Emergency Management Agency Landslide Watch List.

The 2005 Western North Carolina Landslide Hazard Mapping Program was terminated in June 2011.

Western North Carolina mountain real estate financial considerations: Homes have no insurance protection for earth movement damage and Planned Community property owners are responsible for maintaining their landslide-prone roads.

By statute private subdivision roads, including those built on mountain slopes, do not have to meet minimum state Department of Transportation engineering criteria.

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

The North Carolina Association of Realtors position re hazardous-land disclosure is uncertain.

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

Western North Carolina Mountain Real Estate

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

In order to meet Stafford Act risk-reduction requirements, states and municipalities must record and quantify property threats such as flooding, landslides and earthquakes in public documents. These reports, titled Multi-Hazard Mitigation Plans, evaluate the probability and cost of future natural hazard events.

Buncombe County, NC Hazard Mitigation Plan June 2011

In its final draft report, page 27, officials acknowledge that unstable slope conditions undermine home sites throughout the county:

This assessment revealed a potential total of 7,618 parcels (214,497.75 total acres or 53.84% of total Buncombe County acreage) with a total tax value of $5,475,920,829 classified as “Unstable Area”. Of these parcels 4,054 are occupied (total tax value $4,713,992,079) and 3,564 are vacant (total tax value $761,928,750). A table showing the breakdown of parcel type, building values, improvement values and land values is included in Appendix D.

To assess vulnerability for landslides the May 28, 2010 Buncombe County tax parcels were intersected with a land stability index layer created by the State Geologist’s Office of NC DENR. All parcels that intersect any of the unstable areas were then identified. Unstable Areas have a 100% probability of instability.

Buncombe County, North Carolina Landslide Hazard Maps—North Carolina Geological Survey

"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

Buncombe County, NC Hazardous-Land Subdivisions

Buncombe County mountain soils are classified "poorly suited" or "unsuitable" for residential site development. Homes and roads built on or above a 15% grade are considered at risk of earth movement.

The following Buncombe County, NC mountain slope subdivisions are located in Unstable Areas:

The Cliffs at High Carolina
The Cliffs at Walnut Cove [steep-slope home sites]
Southcliff
Reynolds Mountain
Crest Mountain
Waightstill Mountain
The Settings of Black Mountain [ the development company has been dissolved]
Chimney Laurel
Falcon Ridge at Haw Creek
Moore's Valley
Chestnut Mountain
Poplar Ridge
Mountain Meadows
White Rock Mountain Preserve
Allen Mountain Ridge
Bartlett Mountain Views
Bear Track Estates
Gaston Mountain

Transylvania County, NC Mountain Real Estate Landslide Report

2011-11-26T17:32:00.000-08:00

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.

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

2011-11-21T09:46:00.000-08:00

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

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

2011-11-18T20:25:00.000-08:00

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.

Western North Carolina Mountain Real Estate: Landslide Risk Counties

2011-11-14T18:39:00.000-08:00

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

The Ridges of Franklin NC Developer Dismisses Wildflower Hazardous-Land Data

2011-10-14T06:54:00.000-07:00

Wildflower, an Ultima Carolina LLC Subdivision Development 2004

Federal officials [FEMA] designated all Western North Carolina counties landslide-hazardous in 1998 so Robert Ullmann and Hardy Smith, Ultima Carolina co-partners, should have known that the Macon County, NC Wildflower subdivision tract was not suitable or safe for residential development. This risk assessment was based primarily on soil survey data.

Ultima Carolina Communities : Wildflower, Avalon, Black Bear Falls and Fontana Trace were all sited on unstable ground.

SouthWings photos of Wildflower Subdivision landslides
Franklin, NC

Mountain slope subdivision development has left Macon County property owners with "unstable roads and house sites, unlivable homes, and hundreds of foreclosed lots...." Lewis Penland, Macon County Planning Board Chairman, December, 2010

The Ridges of Franklin NC, a Leed Enterprises LLC Subdivision Development 2011

Leed Enterprises LLC purchased a 500-plus acre parcel of the under-foreclosure Ultima Carolina 2,200-acre Wildflower Subdivision tract in June 2011. Land sales for the company's new subdivision,The Ridges, were initiated on October 1.

Wildflower home sites originally sold for $100,000-$300,000, whereas The Ridges of Franklin lots are priced from $14,000 to $30,000. Leed Enterprises, a newly-formed entity, is managed by L. C. Jones a local paving contractor.

The Smoky Mountain News reported that Leed Enterprises paid the Ultima Carolina lien holder, BB&T, $1 million for The Ridges acreage. This acquisition came with well-publicized landslide issues.

Several months later as part of its sales promotion, the company issued this disclaimer: "Wildflower Development Franklin, NC No Longer Threatened by Landslides; Developer Builds New Roads in Subdivision of Resort Community."

Wildflower Landslide Report

Following the November 2009 Wildflower Subdivision /Thompson Road landslide, state geologists identified twenty other endangerment areas along the 30-mile private road system. This news had an negative impact on the project's viability: sales ceased, property values declined and mortgages went into foreclosure.

Causative Landslide Factors: Soils and North Carolina General Statute 136-102.6

Macon County, NC Soil Survey findings reveal that soil compositions, such as those found throughout the Wildflower development area are unstable and "poorly-suited or unsuited" for residential development. The Federal Housing Authority classifies these types of steep-slope erodible soils as adverse building site conditions.

In addition to the imprimatur of the Macon County Planning Board for the Wildflower subdivision, state law allowed, Ultima Carolina, the original developer to construct a 30-mile road network that did not meet minimum state Department of Transportation criteria. Even when a developer opts to build to standards there is no guarantee that the state will ever assume responsibility for the roads. [General Statute 136-102.6.]

The Ridges of Franklin, NC: Property Owners' Financial Considerations

The Wildflower road system was constructed on unstable soils and without state and county supervision. These faults pose outsize risks for property owners since they, not the developer, are ultimately responsible for maintaining the subdivision's infrastructure. Case in point: Alarka Creek Properties Homeowners Association lawsuit .

Homeowners suffering earth movement property loss are forced to self-insure as this hazard is not covered by the insurance industry.

Leed Enterprises LLC: False Advertising Practices

Regardless of the developer's claim, the truth is The Ridges of Franklin, NC lots and roads are sited on likely-to-fail slopes. As the following research shows, the landslide risk is not confined to the Wildflower Subdivision. This unstable-land hazard affects all Macon County, NC mountain real estate.

Macon County, NC Mountain Real Estate Landslide Hazard Research

Fig. 4. Shaded relief map of Macon County, NC and known locations of debris flows (white circles)
from the complete NCGS database (as of August 2006). The shaded relief map was constructed from a
6 m pixel resolution light-detecting and ranging (LiDAR) digital elevation model (Wooten et al., 2007/2008). Source

CLIMATOLOGICAL PERSPECTIVES ON THE RAINFALL CHARACTERISTICS ASSOCIATED WITH LANDSLIDES IN WESTERN NORTH CAROLINA

Macon County, North Carolina Landslide Hazard Maps—NCGS

Macon County, NC Landslide Fatalities

NCGS—Peeks Creek, NC Landslide Photos
The Peeks Creek debris flow, September 2004, killed
five Macon County, NC residents and destroyed fifteen
homes.

Macon County, NC Underground "Big Slow-Moving" Landslide

Photos of Craftsman's Village construction site and view of Boggan
landslide property damage—Macon County News

The property just beyond the bulldozer, as indicated by the box, was allegedly affected by land excavation performed by developer Joseph Moretti in the “toe” of the mountain directly below the property. Blasting throughout the last year may have triggered more land displacement. The property owner claims that the condemnation of his property was caused by a “manmade disaster,” instead of factors that result in natural erosion.— Macon County News

Underground earth-movement events, also known as weathered-rock slides, have been reported in Yancey, Jackson and Haywood Counties.

Macon County, NC Wildflower Hazardous-Land Subdivision Permit

Macon, like many other Western North Carolina landslide-prone counties, has declined to establish meaningful regulatory safeguards for those purchasing mountain subdivision real estate. The Macon County Commissioners anti-regulation position is not expected to change even though some planners disagree.

Mr. Penland is not the only person on the Macon County Planning Board to express criticism over the resumed development in the Wildflower tract. Susan Ervin, another member of the board, said:

We worked hard to get sensible slope development regulation — but it didn’t happen. Now, the lots are back on the sale block....

What assurance do we have that the development will be done well this time? What control do we have? Do the people looking at lots up there have any idea about the North Carolina Geological Survey Slope Movement Hazard Maps? Do they know there are unstable soils up there? Down here in the valley, we know it.”

Hamlet Estates at St. James: Chinese Drywall Lawsuit Revelations

2011-09-14T19:13:00.000-07:00

Photo of under-construction home in the Hamlet Estates at
St. James Subdivision November 2007— "Incentives, to Fight the Doldrums" New York Times

Hamlet Estates at St. James Defective Drywall Lawsuit

In 2006 the St. James Development Corp [ Holiday Organization]contracted with Long Island Wallpaper Inc. to provide drywall for a model home located at 5 Hamlet Woods Drive. Three years later, September 2009, this sales model was the subject of a defective Chinese drywall lawsuit. The plaintiff, St. James Development Corporation, alleged that the drywall was defective in that the product was emitting corrosive sulfide gases. Since the 5 Hamlet Woods model [lot 8] was and remains company-owned, it is not known whether other commissioned structures built in the same time frame had similar problematic drywall. A property search indicates that 5 Hamlet Woods Drive is now an empty lot.

The drywall at issue was imported by Venture Supply, Inc. a Norfolk,Va firm. In June 2009, the company ceased operations.

Venture Supply Inc.

From March 2006 to December 2008, Venture Supply sold 100,000 sheets of suspect Chinese drywall to various residential development companies. Some of the product was used in homes in the Hampshires at Greenbriar and Cromwell Park at Salem subdivisions.

The U. S. District Court Eastern District of Virginia Norfolk Division, found the following on July 2011 re the harmful effects of the drywall:

In total, seventy-four (74) of the homes, sixty-eight (68) at The Hampshires and six (6) at Cromwell Park, had Chinese drywall installed in them. The Chinese drywall was defective and contained levels of elemental sulfur approximately three hundred seventy-five (375) times greater than representative samples of domestic drywall. As a result, it caused property damage to the homes where it was installed by corroding HVAC coils, damaging wiring, tarnishing or corroding metal objects, and causing a bad odor. The source of the corrosion, pitting, tarnishing, and blackening of the electronics and metal components was reduced sulfur gases.3

It has been determined that some units in The Harbor Walk condominium project also contained drywall supplied by Venture Supply. Sam Porter, president of Venture Supply and Blaine-Porter, told the media that he had destroyed 50,000 sheets of his remaining Chinese drywall inventory.

Contaminated Drywall Real Estate Database

An undetermined number of homes throughout the U. S. [built or remodeled from 2001-2009/ Consumer Product Safety Commission established time-line] contain drywall contaminated with sulfur. The CPSC has received defective drywall complaints from homeowners in 42 states, the District of Columbia, American Samoa and Puerto Rico.

The ProPublica/Sarasota Herald-Tribune interactive Chinese drywall database [December 2010] shows approximately 7,000 residences containing this defective product, whereas the CPSC reports fewer than 3,500. Some experts believe that more than 100,000 homes were built with off-gassing drywall.

Defective Chinese Drywall Homeowner Complaint

Watch the full episode. See more Need To Know.

Defective Georgia Pacific Drywall Homeowner Complaint

Sulfur-emitting drywall was originally considered a Chinese product defect but there is evidence that U. S.-manufactured drywall also contains likewise destructive properties. In spite of homeowner complaints re domestic-made drywall, the CPSC closed its investigation in April 2011

Independent research sponsored by CBS News in 2009 found the following domestic vs foreign-made drywall aberrations:

As expected, the contaminated Chinese samples gave off high levels of sulfur gases. But all but one of the U.S. samples emitted sulfur gases, as well - not at levels as high as the defective Chinese product, but unexpected. Perhaps more surprising, "There were some American products that we tested that had higher emission than some of the new Chinese products that we tested."

Defective Drywall Financial Risks

Most homeowners policies will not cover damage caused by product defects, i.e. off-gassing drywall. The costs to remediate said structures start at $100,000.

Florida does not levy property tax on sulfur-contaminated homes as these structures are considered worthless.

Defective Drywall Health Risks

Breathing sulfur-contaminated air causes pulmonary dysfunction. Property owners living in this environment, sometimes for years, were not aware of the cause of their medical complaints until the media opened its Chinese drywall investigation.

The noxious gas released by drywall adulterated with sulfur elevates health risks for the most vulnerable: children, seniors and those with impaired immune systems. Even though the Consumer Product Safety Commission found no drywall link in the Fort Bragg infant fatalities, questions remain.

North Carolina Defective Chinese Drywall

There is evidence that 18 million pounds of Chinese drywall has entered North Carolina ports since 2006.

North Carolina home builders linked to imported drywall are: Lennar Homes with developments in greater Raleigh and Charlotte; Ryland Homes with developments in greater Charlotte; Standard Pacific Homes with developments in greater Raleigh and Charlotte; and Stafford Custom Homes with homes in greater Raleigh, Carthage, Southern Pines, Aberdeen and Lillington.

Lennar, Ryland, Standard Pacific and Stafford are named as defendants in the Omnibus Defective Drywall Class Action lawsuit.

Lennar, LLC v. KNAUF GIPS KG et al

Lennar became an interested party in the defective Chinese drywall issue because a number of company-built homes contained costly to remediate off-gassing drywall. As noted by the plaintiff's lawyers, "Lennar stands alongside its homeowners as victims of Manufacturers, Suppliers and Installers, who unfortunately allowed this defective drywall to be manufactured, supplied and installed in the Affected Homes."

When the lawsuit was filed in January 2009, Lennar officials knew from environmental tests that sulfur was the cause of the corrosion.

Lennar, LLC listed many foreign and domestic parties as defendants in its defective Chinese drywall lawsuit. One was Independent Builders Supply Association Inc., a North Carolina firm.

Stafford Custom Homes

In April 2009, the Flanigans, owners of a Stafford Custom Home in the Valleyfield subdivision, filed a lawsuit alleging that their residence, purchased in 2004, contains sulfur-emitting drywall. The Flanigan home is located at 112 Stone Barn Circle, Holly Springs, NC 27540 and according to property records was built in 2001.

Federal Drywall Contamination Cases Terminated

The question of why this hazardous product was allowed to enter the residential marketplace will likely have no satisfactory answer since the Consumer Product Safety Commission has closed its investigations.

Courts adjudicating the defective drywall cases are finding for the injured parties but it is unlikely that the levied financial penalties, if paid, will cover the costs of restoring the thousands of damaged properties to habitable conditions. Part of the expense to be borne by defendants is certification by an independent party that the remediated structure is free of sulfur contaminants. The costs, established by court ruling, are $10,000.

Macon County, NC Real Estate: Material Matters

2011-08-10T20:46:00.000-07:00

FHA Subdivision Site Suitability Requirement

Developers who expect to offer FHA-insured mortgage loans for homes in their proposed or newly-completed subdivisions must complete a Builder's Certification of Plans, Specifications, & Site disclosure statement in order to qualify.

FHA concerns:

(1) Does the site have any rock formations, high ground water levels, inadequate surface drainage, springs, sinkholes, etc.?
(2) Does the site have unstable soils (expansive, collapsible, or erodible)?
(3) Does the site have any excessive slopes?
(4) Does the site have any earth fill?
If "Yes," will foundations, slabs, or flatwork rest on the fill?

Builders who answer yes to any of the above questions are expected to respond with confirmation from state licensed engineers that home sites are sound. This procedure is intended to safeguard FHA underwriting risks and provide homeowner security.

As the following research shows, Macon County building sites are exposed to mass land movement, underground landslides and unstable soils.

Macon County, NC Geologic Hazards

As this landslide incident map details, Macon County, NC home sites and HOA-deeded roads are likely to be impacted by earth movement. In extreme cases, these forces can be deadly. The Fishhawk Mt., September 2004, debris flow is an example of a catastrophic landslide. This swift-moving mass killed five residents and destroyed fifteen homes in the Peeks Creek area of Macon County.

CLIMATOLOGICAL PERSPECTIVES ON THE RAINFALL CHARACTERISTICS ASSOCIATED WITH LANDSLIDES IN WESTERN NORTH CAROLINA

Western North Carolina Landslide Hazard Maps

All Western North Carolina mountain counties, including Macon, are classified landslide-hazardous. Federal Emergency Management Agency officials, state geologists, soil scientists and independent researchers define the risk as significant. Western North Carolina landslide/soil hazard maps were intended to:

...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 October 2006

The North Carolina General Assembly defunded the Western North Carolina Landslide Hazard Mapping Program in June of 2011. Of the nineteen counties covered by the Program only three county landslide hazard maps have been released. They are Macon '06, Watauga '08 and Buncombe '09; remaining: Alleghany, Ashe, Avery, Burke, Caldwell, Haywood, Henderson, Jackson, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, and Yancey.

Western North Carolina Soil Surveys

With the closure of the Western North Carolina Landslide Hazard Mapping Program, affected parties will have to depend on another resource when making a decision on whether to buy a Western North Carolina home site.

The standard reference for land-use planning, be it for agricultural production or residential development, is the county soil survey. These decades-old studies provide data as to whether soils are practical for a specified use. In the case of Western North Carolina mountain slope soils, the surveys, including Macon's are clear, the region's soils are "poorly-suited or unsuited" for dwellings, roads, and septic tank absorption fields. As noted, FHA classifies unstable soils as adverse site conditions.

Consequence of Macon County, NC Steep Slope Development

Mountain slope subdivision development has left Macon County property owners with "unstable roads and house sites, unlivable homes, and hundreds of foreclosed lots...." Lewis Penland, Macon County Planning Board Chairman December, 2010

Although Mr. Penland comments were circumspect, he was likely referring to news reports re the multiple Wildflower subdivision slope failures and the Boggan home site underground landslide.

Wildflower's collapsing road system is similar to those in a Swain County development. According to testimony in the Alarka Creek Properties Homeowner Association lawsuit, roads in the Timber Creek Estates and Eagles' Roost, subdivisions are "perpetually in peril."

Destructive underground land movement has been reported in Haywood, Jackson and Macon Counties.

Ultima Carolina Wildflower Subdivision Landslides Macon County, NC

SouthWings photos of Wildflower landslides

Craftsman's Village/Boggan Landslide

Photos of Craftsman's Village construction site and view of Boggan
landslide property damage—Macon County News

Western North Carolina Real Estate Disclosure Issues

Since 2007 there have been several legislative attempts to regulate Western North Carolina county land development practices and require hazardous-land disclosure. The Safe Artificial Slope Construction Acts [2007-2011] were not successful.

Western North Carolina real estate is an especially high risk investment because homes have no insurance protection for expected earth movement property damage. The risks increase for those who live in planned communities. Residents in HOAs have a
non-negotiable obligation to maintain and repair roads on unstable slopes. Developer-designed roads often do not meet minimum state engineering standards.

The Missing Macon County Landslide/Soil Hazard Maps

Landslide/soil hazard maps have been removed from the county web site and Realtors pretend these documents do not exist. The state will not intercede in this matter.

North Carolina Association of Realtors

Trust in the North Carolina Association of Realtors is unwarranted. Purchasers should follow FHA mortgage underwriting standards and hire a professional engineer for advice.

Western North Carolina Mountain Properties: Swain County, NC Real Estate Landslide/Soil Hazard Report

2011-07-26T10:44:00.000-07:00

Steep, high excavations in debris fan deposits can be unstable. This cut slope failed during the May 5-7, 2003 rains in Swain County. Although the log cabin remained intact, the failed debris pushed it 3-5 feet off its foundation—NCGS

Swain County, NC: Landslide Hazard Disclosure Considered in 1994

Landslide issues have long been a topic of discussion in Swain County. Seventeen years ago this matter was raised by the Board of Commissioners in their 1994 Land Use Development Plan report. The following comment was extracted from page 26 of that report:

Newcomers are often unaware of the many problems associated with hillside or hilltop development. They often pay a high price for this lack of information in the form of improperly functioning wells, and septic systems, unstable foundations, and yards which tend to slide away from the front door.

Swain County, North Carolina 2003 Landslides

In May 2003, rain precipitated slope movement in the Charley Branch, Lands Creek, So Hi Trail and Alarka Creek areas of Swain County. The North Carolina Geological Survey found that:

In all cases, the May 5-7, 2003 debris flows appear to have initiated on fill slopes along roads or on house sites built using cut-and-fill construction methods. This report is being provided at this time to advise local officials of past, and potential future problems associated with development on steep slopes underlain by these rock types.

Some of the landslides documented by the NCGS occurred in Timber Creek Estates and Glory Mountain Subdivisions.

Left: Scarp in driveway embankment constructed with excavated sulfidic-graphitic bedrock that failed and mobilized into a debris flow during heavy rains in Swain County during May 5-7, 2003.
Upper Right: Tension crack in road embankment containing a water line hook-up. Leaning trees (red arrow) indicate down slope creep of the embankment material.
Bottom Right: Sulfidic-graphitic bedrock with characteristic iron oxide stained weathering surface and silver-gray fresh surface exposed in an excavation near home in photograph left. —NCGS

Color infrared aerial photographs of the Charley Branch, Lands Creek, and Alarka Creek areas excerpted from the 1998 digital ortho-quarter quads (DOQQs). A. Color infrared photograph of the
Charley Branch area. All debris flows at this location occurred during the May 5-7, 2003 storm event. B. Color infrared photograph of the Lands Creek area. The Bryson City Reservoir is in the middle of the photograph. The Lands Creek I debris flow (LC1) occurred December 12, 1990, and the Lands Creek II
debris flow (LC2) occurred during the May 5-7, 2003 storm event. C. Color infrared photograph of the Alarka Creek area. All debris flows at this location occurred during the May 5-7, 2003 storm event. The aerial photograph was taken prior to construction of Midnight Lane and Timber Estates Drive.— NCGS

Engineers have testified in the Alarka Creek Properties Homeowners Association lawsuit that sections of the roads in the twin community, Timber Creek Estates and Eagles' Roost, subdivisions are "perpetually in peril". These roads were designed and commissioned by the Cane Creek Development Corporation.

Bryson City Land Development Plan— Swain County, NC

Bryson City, NC Slope Map

Bryson City Soil Map

As referenced on pages 68-70 of the Bryson City Land Development Plan, steep-slope soils are a restrictive factor:

There are three broad soil associations in the study area: Evard-Clifton- Braddock (s4660), Hayesville-Cordorus-Bradson (s4702), and Tsali-Spivey-Santeetlah-Junaluska (s4713) (Map 12). Selected physical, chemical, and engineering properties of each of the three soil associations can have serious implications for land use planning. The plasticity index is a measure of moisture content within soil that remains plastic, or malleable. Some soils are capable of changing from semisolid to plastic, and eventually into a liquid state. This index is exceedingly important in steep and mountainous areas because of potential slope failures and landslides of soils that readily change from semisolid to liquid form.

Western North Carolina Soil Surveys: Slope Failures Expected

The Federal Emergency Management Agency designated Western North Carolina mountain counties, including Swain, a landslide region in 1998. This high hazard assessment was based in part on county soil survey documents. These land-use guides state that the region's mountain soil compositions are inherently unstable. Contrary to some county steep slope development ordinances, critical slopes are defined as those on or above a 15% grade.

Since certain soils are classified "poorly suited"
or "unsuitable" for residential use, i.e.
roads and home sites, the North Carolina Geological Survey includes soil data on a county's Stability Index Map. For instance, if a Buncombe County subdivision was located on Clifton clay loam with 15-30 percent slopes, it would be deemed a poorly situated residential development. Reference: Buncombe County Soil Survey page 104.

The Jackson County Planning Board acknowledged in 2006 that steep-slope soils pose a threat to property owners in several dozen subdivisions.

September 2004 Federal Disaster Declarations Prompt Western North Carolina Landslide Hazard Maps

Following the multi-county landslide events of September 2004, the North Carolina General Assembly allocated funding for the Western North Carolina Landslide Hazard Mapping Program. This initiative was authorized for the nineteen counties included in the disaster declarations. In June 2011 legislators closed the Western North Carolina Landslide Hazard Mapping Program citing budget shortfall. The North Carolina Geological Survey has released three county landslide hazard maps: Macon ('06), Watuaga ('08) Buncombe ('09)

Western North Carolina Real Estate: Insurance Caveat

Homeowner and special-line policies do not cover earth movement property loss.

Western North Carolina Homeowners' Association Caveat: Subdivision Street Disclosure Statement

Property owners in planned community subdivisions are responsible for maintaining and repairing their HOA-deeded private roads. As noted in the recent Alarka Creek Properties Homeowners Association lawsuit this liability can pose significant financial risks.

Those purchasing property in mountain subdivisions, should review association records for special assessments, inquire if there have been any landslide events and most importantly ask to see the HOA road engineering report.

According to Bunnell-Lammons Engineering, an Asheville-based firm, there are four reasons for mountain road failure: insufficient pavement thickness, insufficient asphalt compaction, slope instability and bad drainage.

The May 2003 rain events also triggered landslides in Haywood County, NC causing damage to private roads. For additional information, please see Horseshoe Cove Landslide Report.

North Carolina Association of Realtors Sales Practices

Western North Carolina soil surveys and landslide maps are decided material facts, yet this risk data does not appear on residential disclosure statements because of opposition on the part of the North Carolina Association of Realtors.

The reality is, newcomers remain intentionally uninformed.

The Alarka Creek Properties Homeowners Association Lawsuit

Since articles are often archived, this is a reprint of the Smoky Mountain News report on the Swain County landslide lawsuit.

Developer loses landmark lawsuit over shoddy roads
June 22, 2011 —:Colby Dunn

By most accounts, calling Art Williams a hands-on developer would be a pretty fair description. For decades, Williams was in the business of subdivision building, first in Florida and then in Western North Carolina.

In pretty much everything, his word was the final say. He picked the land to be developed, he divvied up the plots, he instructed engineers and construction crews. He even sold many of the lots himself.

Even as his health failed, said his wife Anne, her husband was routinely on the scene at the developments. His regular contractors said the same. He was there when the pavement was laid on the roads in Alarka Creek Properties, one of the Williams’ first developments in Swain County. And it was he who approved the words “state-approved paved roads” in brochures advertising the developments. He signed off on the erosion and sediment control plans for the 5.5 miles of roads that crisscross the development.

But it was not Williams who footed the bill when some of those roads began to deteriorate and slide from the mountains they were cut steeply into.

Of the homeowners in the subdivision, many bought their properties directly from Williams and believed the state-approved-roads pitch, until they were left with $40,000 worth of repairs and roads that were, in places,
perpetually in peril.

This hadn’t been part of the purchase bargain. And in 2008, the costs and safety concerns reached a critical mass. The Alarka Creek Properties Homeowners Association took the late Williams’ Cane Creek Development Corporation to court, charging that he and his team misled them, saddling them with defective and dangerous roads.

Three years later, they won, to the tune of $3 million — the largest judgment court clerks had ever seen in Swain County — and threw into sharp relief the ongoing debate in Western North Carolina over steep-slope development and who is responsible when it falls, literally, to pieces.

What went wrong?

Alarka Creek Properties is a two-pronged development precisely 5 miles from Exit 69, just west of Bryson City. Its twin developments, Timber Creek Estates and Eagles’ Roost, sweep up the faces of neighboring mountainsides, cradling Alarka Creek neatly between them.

They’re not subdivisions in the traditional sense — there’s no pool or clubhouse, and most of the homes aren’t even within shouting distance of one another. They do have gates and a homeowners’ association, but really, the two developments are collections of retirement retreats and second homes, a mixture of already-built houses and empty plots that boast spectacular vistas of the surrounding landscapes.

The roads that lead to and connect them, though, aren’t for the faint of heart or fragile of vehicle. Sitting at the apex of Eagles’ Roost, facing down the mountain isn’t dissimilar to the slow crest of a rollercoaster’s first descent, peering down the long incline. They drop off steeply to one side and hug the sheer mountainside on the other. And though few cars are around to traverse the lanes, meeting one headed in the opposite direction can be a harrowing experience. The views are pastoral — the drive, less so.

The roads are anywhere from seven to 10 feet across. In places, there are signs of distress — fissures and cracking. They’re all passable now, but that hasn’t always been the case.

“We’ve had three multi-thousand dollar slides, we had a road that we had to move 2,000 feet of with blasting,” said John Foster, the homeowners’ association’s one-time president. “Ultimately, the road probably should not have been put in.”

That is, of course, only his opinion.

But, according to a study done by Bunnell-Lammons Engineering, a geotechnical firm out of Asheville, he’s at least partially correct.

There was never a dedicated, detailed road plan drawn up for Alarka Creek’s roads. Swain County doesn’t require one, and unless a developer plans on leaving the road in the state’s care, neither does the state.

There was, however, the required erosion and sediment control plan that detailed how the roads would meet state standards for erosion and run-off on the steep fill slopes — manmade grades with fill dirt pulled from the surrounding mountain.

It’s not a definitive road-building guide, but it spelled out the basic standards for what would be installed at Alarka Creek: road thickness, slope and drainage measures.

And, said the engineering firm, had developers and contractors followed the plans, the roads probably would’ve been fine.

But they didn’t.

Detailing the problems

There are, said the report, four basic reasons for mountain road failure: insufficient pavement thickness, insufficient asphalt compaction, slope instability and bad drainage.

In places, Alarka Creek’s roads showed all four.

Where the plans called for pavement to be two inches thick, in some spots it was only 1.5. They specified six inches of crushed stone under that pavement. Most roads averaged only 5.4. One had barely more than an inch.

Ninety-five to 96 percent compaction is industry standard for a fill slope — unlike the mountain’s native soil, it hasn’t had thousands of years to build up its structural integrity. The more densely packed, the less likely it’ll move around, cracking and sliding. That’s what the plans called for, too.

Most of the subdivision’s roads averaged between 84 and 89 percent compaction.

And then there’s the slope.

The state recommends a two-to-one, horizontal-to-vertical slope ratio at minimum for a safe road. And again, that’s what appeared on the erosion control plan submitted to the North Carolina Department of Natural Resources.

But the engineering firm found some of the slopes to be as steep as one-to-one.

“The roadway fill embankments evaluated have a significant potential for instability because the roadway fill embankments are constructed of loose fill that have a steeper slope inclination than fill soil conditions can support,” read the summary report.

In other words, you can’t have loose dirt and a steep road, too, or eventually, you won’t have a road.

“When you have slopes too steep and base and asphalt too thin, the roads are going to fall apart,” said Dan Bryson of Raleigh, the lead attorney on the homeowners’ side. The case, he said, was simple — poorly constructed roads sold through false advertising.

“When they showed homeowners paved road as an inducement to sell, it was a bait and switch,” said Bryson. “There was significant engineers’ testimony that these roads were not built pursuant to local standards. When you build a road, there’s just some basic things you have to do. And it’s going to take a little bit longer, but you just need to do it right.”

Anne Williams, Art Williams’ widow, disagrees with those assertions. As the sole owner of Cane Creek Development, she is the defendant.

Bryson and his legal team pointed to the multiple slides and alligator cracking — patchwork cracks that resemble the crusty reptilian pattern of an alligator’s back — as signs that the roads were faulty from the outset.

“But that’s typical of all roads in [Western] North Carolina, when you pave them,” said Williams. “All the other evidence was that we had done the right thing, we’d done the best roads we could do. State roads slide all the time, and 90 percent of that road is there the same way we built it.”

Could they have gotten a geotechnical engineer, like BLE, to come and test the sites before the road was laid? Sure, said Williams. But no developer does that, she said; it’s too cost prohibitive.

“You‘re selling lots to average people. This is not a country club setting,” said Williams. “We wanted to build in a way that the average person could buy and have a second home, not what we always called the ritzy ditzy.”

Plus, she said, they knew what they were getting.

“They all personally signed [a statement] that they understood that these were private roads and they were inferior to state roads and that the burden of keeping up the roads would be on the homeowners’ association,” said Williams.

And regardless of the roads’ initial construction, that much is true. Which points to a problem facing not just Swain County, but every mountainside subdivision in the region.

Caveat Emptor

Paul Carlson is a man familiar with degraded land. He’s the executive director of the Franklin-based Land Trust for the Little Tennessee, a non-profit group that works in land preservation. He is concerned about the glut of developments in WNC such as Alarka Creek, where steep lots connected by questionable roads have now fallen to owners to maintain. And those owners may not have always done their homework.

“Perhaps they hadn’t done significant due diligence to find out what they’re getting into, and now collectively own a liability,” said Carlson. And what then? “With poorly designed road systems on these properties, every year that passes the liability is increasing. Well, who’s going to be responsible for that stuff?”

That’s a question that legal precedents like the Alarka Creek case are looking to settle, but historically, a lot of homeowners have been left holding the bag on decaying roads they didn’t think they signed up for.

John Foster certainly didn’t. When he bought his plot in Alarka Creek, he didn’t dream Williams would sell him a lot on an unsafe road. But he didn’t look too far into it, either.

“I thought it was steep, but again with the advertisement of state-approved, I thought, ‘OK, if the state of North Carolina is going to approve this, then I’m OK with it,’” said Foster. “We did sign a release, but what we understood was we were going to maintain the roads, but we were going to be given roads that were maintainable.”

But this, of course, is not actually a given.

The truth is that, when it comes to private roads, no one is really checking.

During pre-trial interviews, lawyers asked that very question: is there anyone who makes sure these roads are being constructed properly? A state agency? Local authorities? A retired volunteer? Anyone?

“When you construct a house, you have an inspector come in and say ‘this house is substantially complete and it has been constructed in conformance with the plans and specs submitted on file’… to your knowledge, there is no one who does that for roads or private roads?” Bryson’s fellow attorney Scott Harris asked Victor Lofquist, a civil engineer in Sylva who did the erosion plan for Alarka Creek and most of Williams’ other projects.

“Not that I am aware of anywhere,” replied Lofquist.

Doug Parker, the excavator who helped install the roads, replied similarly.

“To my knowledge, there is no equivalent to that (a building inspector) on a road development project,” said Parker.

And that’s become pretty clear in the years since mountainside developments began to see their vogue.

Roads have been splintering and slipping off the hills in subdivisions around the region, and local officials began to realize that maybe someone should, in fact, be looking.

Road Regulation

Enter subdivision ordinances, those controversial local laws that give officials a little more power over what’s going up in their jurisdiction and how it’s built.

Haywood County has one that limits cut slopes to 1.5 to one, and spells out things that state erosion control standards do not, such as no organic matter in roadbeds; it will decompose and crack holes in the street. And they keep tabs to make sure it’s all being done according to plan.

“What would happen is if somebody built a subdivision road here that was subject to the erosion control law is you would submit your plan to us, we would give you approval, we would inspect it periodically. Then we do perform a final inspection,” said Marc Pruett, erosion control program director in Haywood County.

In Jackson County, a similar ordinance was passed, drawing some ire from developers in a locale heavy laden with second homes peppering the steep mountain faces.

But when it comes to such laws, there is a schism in the church of steep-slope construction.

Parker told attorneys in his deposition that those regulations helped grind his subdivision road-building work to a halt in Jackson County.

“We used to (build roads) a lot until we had a subdivision ordinance in this county and then it came to a stop,” said Parker. “Pretty much everything in this area that stopped developing because there was restraints of subdivision ordinances.”

Swain County has no such regulations. There was some movement on the idea around 2007. A committee was even formed, spurred by the news that emergency vehicles couldn’t traverse some of the county’s dicier residential roads. Recommendations were made, but nothing ever came of them. Swain commissioners apparently lacked the political will, in a county that doesn’t even have a planning board.

In neighboring Macon County, a so-called steep slope ordinance is in talks. Macon is dealing with the aftermath of the Wildflower development, which is the apocryphal, when-roads-attack story that seems to drift into most steep-slope conversations.

Wildflower was a behemoth of a development on the side of Cowee Mountain that broke ground in 2005, at the height of the mountain real estate upswing. At the time, it was controversial, but only because local residents feared such an influx of inhabitants would overstretch their resources.

Four years later, most of its lots were in foreclosure. Then the ground broke on it: One of its key thoroughfares collapsed, a landslide followed and a subsequent geological survey cast serious doubt on the rest of the roads in the place. Downslope residents were warned to brace for debris in case of extreme weather.

The neighborhood’s manager defended the roads, calling the collapse an isolated incident and pointing to the fact that the rest of the roads had erosion control approval.

But so, presumably, did the decimated road.

Finding solutions

Back on Alarka, the victorious homeowners are not yet rejoicing. Anne Williams maintains that she is an 81-year-old widow who had nothing to do with the roads’ construction and has no money to pay $3 million for their repairs. She said her refusal to settle with the homeowners wasn’t stubbornness, but insolvency.

“The fact is we lost on Alarka. We may have put in $3 million, but none of it came out of the profit. We have not had to pay income tax for profit reasons for at least five years, if not longer than that,” said Williams. She said she’s closed Cane Creek Development, laid off the staff and headed back to Florida to live off her Social Security.

Dan Bryson, however, thinks Williams’ cries of poormouth are, at best, disingenuous. He’s starting another proceeding against her that, in legalese, is called ‘piercing the veil.’ Basically, he’s going after all the other corporations she has, trying to draw some of the sizeable settlement from them.

In the rest of the region, though, the problem of unstable roads persists, though subdivision ordinances and the economy are cutting down on the number of new substandard streets going down.

Gordon Small, who works with the Haywood Waterway Association, is working on a project to help new developers find the most suitable road locations in the first place, rewarding them with a certification if they follow expert suggestions.

“The No.1 source of non-point pollution — or mud in the creek — is roads,” said Small. His group is trying to get county commissioners to get on board with the idea.

“You can’t observe this and not be concerned about that,” he said. “People are beginning to recognize that it’s to their advantage to know what’s going to move and what’s not.”

Carlson, with the Land Trust for the Little Tennessee, said he’s looking toward an inventory of the region’s perilous roads, so at least they can be monitored for movement.

“Clearly in [the last] decade up until 2008, it was absurd to try to make the argument that the highest and best use of steep-slope land was for forestry, but now it’s kind-of interesting to revisit the question,” said Carlson. “I think a lot of these lands — the most marginal, steep, remote lands where these roads were punched in — it may be that no one wants them.”

And for developers still around, the Swain County jury’s decision is ringing clearly through the mountains.

“I think these jurors are tired of developers who come in, deface the mountains and then put in substandard roads, sell out all the lots and then try to avoid liability,” said Dan Bryson. “I hope that this judgment sends a signal to every developer: if you pave a road on a mountain in Western North Carolina, it needs to be done properly.”

Silver Creek Real Estate Group: Jackson County, NC Landslide Disclosure

2011-06-15T16:21:00.000-07:00

Jackson County, NC Landslide Photo— SouthWings Flyover 2010

Silver Creek Real Estate Group Cashiers, NC

The Silver Creek Real Estate Group is one of several dozen realty firms marketing Jackson County, NC real estate as secure investments.

These no-risk representations are refuted by decades-old federal/state land-use studies which classify the region's mountain soils as impracticable for development. In other words, landslides and soil slippage are expected to have a negative impact on homes and private roads. Experts define critical slopes as those on and above a 15% grade.

These determinants can be found in Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Haywood, Henderson, Jackson, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, Watauga, and Yancey County Soil Surveys. This list is not comprehensive and only reflects those counties covered by the September 2004 disaster declarations.

As the following reports illustrate, Jackson County, NC real estate has considerable building site impediments.

Jackson County, North Carolina: Landslide Hazard Designation

In 1998 federal officials [FEMA] notified the state and twenty-seven Western North Carolina county governments, including Jackson, that the region's mountain slopes were unstable. Six years later, September 2004, debris flows caused loss of life and homes [Macon County] and extensive damage in eighteen other counties. Federal authorities issued two disaster declarations.

Western North Carolina Landslide Hazard Maps

In 2005, the General Assembly allocated funding [post-disaster Stafford Act requirement] for hazard-identification maps. Published landslide maps for Macon, Watauga, and Buncombe Counties show unstable to moderately unstable areas.

The 2011 Appropriations Act has been ratified over Governor Perdue's veto, so the Western North Carolina Landslide Hazard Mapping Program will likely be terminated. In 2006, the North Carolina General Assembly considered these maps invaluable public resources.

Jackson County, North Carolina Planning Board 2006 Steep-Slope Subdivision Review and Maps

Jackson County. NC Slope Evaluation Map
Green indicates 30-50% slopes; purple 50-100%

Jackson County, NC Subdivision Map

For the period 2000-2005, county records show that developers were granted permits for 5454 lots in twenty-five subdivisions. The list is as follows: Trillium/550, Chinquapin/200, Mountain Top/325, Bear Lake/675, Balsam Mountain Preserve/354, Lonesome Valley/200, Pinchot/46, The Divide(Bald Rock/67, Water Dance/94, Phase 1 River Rock/40 Phase 2 River Rock/200, Phase 3 River Rock/1760, Smoke Rise/100, Bear Pen/95, Black Bear Falls/99 Cedar Hill/150, Stone Creek Estates/38, Beachwood/76, Whiteside Cliffs/30, Bakers Creek Preserve/42, Black Rock/32, Dills Cove/70, Bridge Creek/80, Garnet Ridge/100, Mountain River of Cullowhee/31

The Jackson County planning board determined in 2006 that steep-slope subdivision permits are a matter for consideration. This issue is clarified on page 23 of the Jackson County, NC Land Development Plan:

As growth and development occur at an increasing rate in the County, the natural and manmade limitations to development become more apparent. Topography—primarily steep slopes—has been one of the more significant limitations to development. Map 1 [See Appendix] categorizes the development potential of land in the county based upon its slope, with land having a slope in excess of 30 percent considered to have severe limitations to development and lands with a slope in excess of 40 percent considered not suitable for development. Given these parameters, almost half the land in the county either has severe limitations on development or is considered not suitable for development.

For example: landslides have been reported in Bear Lake Reserve, Water Dance, Hawks Ridge and Mountain Heritage Preserve Subdivisions.

Jackson County, NC Landslides: "Not Surprising"

This reprinted North Carolina Geological Survey April 2011 report outlines recent Jackson County, NC landslide incidents:

Landslide Hazard Mapping Update
Jackson County Planning Board
April 14, 2011

A. Overview of work completed from 2/22/2011 through 4/8/2011.

NCGS staff briefed Planning Board on 2/8/11. Field work began on 2/22/2011 and initially concentrated on sites identified by Robby Shelton. Field crews are now conducting routine mapping at various locations in the county several days a week.

Mapping Summary

Total Number of landslides documented in field: 40
Accompanied by Robby Shelton: 19
Field Crews Only: 21
Landslides on unmodified slopes 15
Landslides on modified slopes 25
Total field data collection locations: 231

B. Major issues.

No major issues with work progress have been identified to date. Given the extent of steep slopes in the County, the number of slope movements and slope movement deposits identified to date is not surprising.

C. Things anticipated/not anticipated.

An embankment failure/debris flow associated with acid-producing rock at the Mountain Heritage development is not unlike similar occurrences with acid-producing rock in Macon, Haywood and Swain Counties. As hoped, field crews have been able to confirm debris flow sites on the ground that were identified from 1953 aerial photography.

D. Information or assistance needed from Planning Board.

Cooperation and interest from County staff, especially Gerald Green, Robby Shelton and Kevin Jamison has greatly facilitated the project. Field guidance and historical information on landslides provided by Robby Shelton has been a great help in expediting the mapping and data collection. Thanks to Kevin Jamison who provided the new 2010 ortho-imagery on 4/11/2011. Identification of any areas of concern within the County will help prioritize sites for field visits.
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Notes on Selected Sites Investigated to Date

Active, Slow-Moving Landslides

Sutton Road weathered-rock slide: Past slide movement affected outbuilding and driveway on upper slope. Continued movement could potentially affect homes at the toe of the slope.

Figure 1. Preliminary map showing the outline of the slow-moving landslide in weathered rock. The shaded area indicates the approximate outline of the slide as of April 2011. Blue dot is a mapping reference location near the upslope extent of the slide. 2010 orthophotograph map base.
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Ramp Cove Debris Slide: Slide reactivated in 2007 after excavation in toe of older, dormant slide that had developed in a pre-existing debris deposit. A home site under construction was abandoned after slide movement covered part of the foundation excavation for a new house. Residences below toe of active slide currently not affected by slide activity.

Figure 2. Preliminary map showing a landslide developed in pre-existing debris deposits in Ramp Cove.The shaded area shows the approximate extent of the active slide as of March 2011. Ground rupture lines outside of the shaded area show the approximate locations of inactive scarps indicating the presence of a feature interpreted as an older, now dormant, debris slide also within pre-existing debris deposits. Yellow dots are mapping reference locations near the upslope extents of the slides. 2010 orthophotograph map base.

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Green Gables Development: Cut slope failure in debris deposit affecting property, but not immediately threatening residence.

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Tuckaway - U.S. 281 Debris Slide: Cracks observed in embankment of recent NCDOT road repair. Active slide mass below the highway appears to extend downslope to shoreline of Bear Lake. Slide movement appears to be affecting a vacation home.

Figure 3. Preliminary map of an active debris slide and other debris deposits along U.S. 281 near Tuckaway Road. Pink shaded area outlines the extent of the active slide as of April 2011. Orange shaded areas are debris deposits from previous slope movement events. Yellow dot is a mapping reference location near the upslope extent of theslide. 2010 orthophotograph map base.

Figure 4. Photograph of a scarp (ground rupture line) with vertical displacement) within the active area of the Tuckaway-U.S. 281 slide. Ground movement has split the tree straddling the scarp. Other leaning and curved trees in the area indicate slide movement.
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Stillwell Branch (EBCI) Weathered-rock Slide: Initial mapping done of cut slope failure/weathered-rock slide above a house site. Additional field work needed to assess any potential hazard to residents.
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Debris Flows, Debris Slides, Debris Deposits

Tilley Creek Debris Flow: 1973(?) debris flow that damaged cabin. The run out zone of the debris flow is on an older debris fan surface. The debris flow appears to have initiated on an unmodified (“natural”) slope.

Figure 5. Map showing the path or track (pink shaded area) of a 1973(?) debris flow that damaged a cabin near Tilley Creek Road. The cabin was abandoned after the debris flow event. The debris flow deposited material on pre-existing debris deposits from previous debris flow events. 2010 orthophotograph map base.
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Kiesse Creek: Two embankment failures/debris flows during Frances-Ivan, in September 2004 merged into one~4,000-foot long track that impacted Bear Lake Preserve property and contributed sediment to Bear Lake. Remaining embankment in vicinity of debris flow initiation zones remains unstable.
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Sheep Cliff-Glenville: Embankment failure/debris flow during Frances-Ivan, in September 2004. Sedimentation in creek, homes not damaged or threatened. Some of remaining embankment material at the head of the debris flow is unstable.
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Mountain. Heritage Development: 2009(?) embankment failure/debris flow, and cut slope failure/debris slide. Embankment failure/debris flow developed in embankment derived from sulfidic rock excavated from cut slope. Cut slope failure developed in colluvium.
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Dark Road: Home damaged by a cut slope failure/debris slide. Home had to be repositioned onto foundation and is now in foreclosure.
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Geologic Hazards

Pump Mountain Cut (U.S. 23/Hospital Road): Altered ulramafic(olivine) rock with asbestos minerals is exposed in cuts and other graded areas. Our mapping program will likely result in some small adjustments to the outline of the ultramafic rock map unit into areas not previously mapped as ultramafic rock. Two slope failures were identified: a small rock slide related to talc on planes of weakness in olivine rock (dunite); and a small embankment/sediment pond failure in micaceaous soil. Impacts from the slope failures are on-site. Some additional mapping is planned for this area to evaluate extent of the ultramafic rock and asbestos minerals.

Western North Carolina Realtors: Trust Issues

Western North Carolina real estate has two irresolvable issues: costly slope movement events and no insurance coverage. If these combined risks were well-known, buyers would exercise caution.

Most purchasers understand the need for comprehensive home inspections but what they don't know, and are not being told, is that all Western North Carolina mountain real estate should be evaluated for slope stability. These home site investigations should be conducted by state-licensed geotechnical engineers. For expedient reasons, this information is not forthcoming from Western North Carolina Realtors.

The omission of material facts—unstable soil conditions and landslide hazard maps—on Western North Carolina real estate Web sites raises the question of whether these state-licensed agencies are legitimately representing the public interest.

Cashiers Area Chamber of Commerce: Landslide Hazard Disclosure

2011-06-12T12:57:00.000-07:00

Jackson County, NC Landslide Photo— SouthWings Flyover 2010

Cashiers Area Chamber of Commerce

The Cashiers Area Chamber of Commerce is one of several dozen regional U. S. Chamber affiliates allowing realty members to advertise Western North Carolina real estate as secure investments.

These no-risk representations are refuted by decades-old federal/state land-use studies which classify the region's mountain soils as impracticable for development. In other words, landslides and soil slippage are expected to have a negative impact on homes and private roads. Experts define critical slopes as those on and above a 15% grade.

These determinants can be found in Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Haywood, Henderson, Jackson, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, Watauga, and Yancey County Soil Surveys. This list is not comprehensive and only reflects those counties covered by the September 2004 disaster declarations.

As the following reports illustrate, Jackson County, NC real estate has considerable building site impediments.

Jackson County, North Carolina: Landslide Hazard Designation

In 1998 federal officials [FEMA] notified the state and twenty-seven Western North Carolina county governments, including Jackson, that the region's mountain slopes were unstable. Six years later, September 2004, debris flows caused loss of life and homes [Macon County] and extensive damage in eighteen other counties. Federal authorities issued two disaster declarations.

Western North Carolina Landslide Hazard Maps

In 2005, the General Assembly allocated funding [post-disaster Stafford Act requirement] for hazard-identification maps. Published landslide maps for Macon, Watauga, and Buncombe Counties show unstable to moderately unstable areas.

If the pending 2011 Appropriations Act becomes law, the Western North Carolina Landslide Hazard Mapping Program will likely be terminated. In 2006, the North Carolina General Assembly considered these maps invaluable public resources.

Jackson County, North Carolina Planning Board 2006 Steep-Slope Subdivision Review and Maps

Jackson County. NC Slope Evaluation Map
Green indicates 30-50% slopes; purple 50-100%

Jackson County, NC Subdivision Map

As growth and development occur at an increasing rate in the County, the natural and manmade limitations to development become more apparent. Topography—primarily steep slopes—has been one of the more significant limitations to development. Map 1 [See Appendix] categorizes the development potential of land in the county based upon its slope, with land having a slope in excess of 30 percent considered to have severe limitations to development and lands with a slope in excess of 40 percent considered not suitable for development. Given these parameters, almost half the land in the county either has severe limitations on development or is considered not suitable for development.

Landslide Hazard Mapping Update
Jackson County Planning Board
April 14, 2011

A. Overview of work completed from 2/22/2011 through 4/8/2011.

NCGS staff briefed Planning Board on 2/8/11. Field work began on 2/22/2011 and initially concentrated on sites identified by Robby Shelton. Field crews are now conducting routine mapping at various locations in the county several days a week.

Mapping Summary

Total Number of landslides documented in field: 40
Accompanied by Robby Shelton: 19
Field Crews Only: 21
Landslides on unmodified slopes 15
Landslides on modified slopes 25
Total field data collection locations: 231

B. Major issues.

No major issues with work progress have been identified to date. Given the extent of steep slopes in the County, the number of slope movements and slope movement deposits identified to date is not surprising.

C. Things anticipated/not anticipated.

An embankment failure/debris flow associated with acid-producing rock at the Mountain Heritage development is not unlike similar occurrences with acid-producing rock in Macon, Haywood and Swain Counties. As hoped, field crews have been able to confirm debris flow sites on the ground that were identified from 1953 aerial photography.

D. Information or assistance needed from Planning Board.

Cooperation and interest from County staff, especially Gerald Green, Robby Shelton and Kevin Jamison has greatly facilitated the project. Field guidance and historical information on landslides provided by Robby Shelton has been a great help in expediting the mapping and data collection. Thanks to Kevin Jamison who provided the new 2010 ortho-imagery on 4/11/2011. Identification of any areas of concern within the County will help prioritize sites for field visits.
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Notes on Selected Sites Investigated to Date

Active, Slow-Moving Landslides

Sutton Road weathered-rock slide: Past slide movement affected outbuilding and driveway on upper slope. Continued movement could potentially affect homes at the toe of the slope.

Figure 1. Preliminary map showing the outline of the slow-moving landslide in weathered rock. The shaded area indicates the approximate outline of the slide as of April 2011. Blue dot is a mapping reference location near the upslope extent of the slide. 2010 orthophotograph map base.
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Ramp Cove Debris Slide: Slide reactivated in 2007 after excavation in toe of older, dormant slide that had developed in a pre-existing debris deposit. A home site under construction was abandoned after slide movement covered part of the foundation excavation for a new house. Residences below toe of active slide currently not affected by slide activity.

Figure 2. Preliminary map showing a landslide developed in pre-existing debris deposits in Ramp Cove.The shaded area shows the approximate extent of the active slide as of March 2011. Ground rupture lines outside of the shaded area show the approximate locations of inactive scarps indicating the presence of a feature interpreted as an older, now dormant, debris slide also within pre-existing debris deposits. Yellow dots are mapping reference locations near the upslope extents of the slides. 2010 orthophotograph map base.

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Green Gables Development: Cut slope failure in debris deposit affecting property, but not immediately threatening residence.

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Tuckaway - U.S. 281 Debris Slide: Cracks observed in embankment of recent NCDOT road repair. Active slide mass below the highway appears to extend downslope to shoreline of Bear Lake. Slide movement appears to be affecting a vacation home.

Figure 3. Preliminary map of an active debris slide and other debris deposits along U.S. 281 near Tuckaway Road. Pink shaded area outlines the extent of the active slide as of April 2011. Orange shaded areas are debris deposits from previous slope movement events. Yellow dot is a mapping reference location near the upslope extent of theslide. 2010 orthophotograph map base.

Figure 4. Photograph of a scarp (ground rupture line) with vertical displacement) within the active area of the Tuckaway-U.S. 281 slide. Ground movement has split the tree straddling the scarp. Other leaning and curved trees in the area indicate slide movement.
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Stillwell Branch (EBCI) Weathered-rock Slide: Initial mapping done of cut slope failure/weathered-rock slide above a house site. Additional field work needed to assess any potential hazard to residents.
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Debris Flows, Debris Slides, Debris Deposits

Tilley Creek Debris Flow: 1973(?) debris flow that damaged cabin. The run out zone of the debris flow is on an older debris fan surface. The debris flow appears to have initiated on an unmodified (“natural”) slope.

Figure 5. Map showing the path or track (pink shaded area) of a 1973(?) debris flow that damaged a cabin near Tilley Creek Road. The cabin was abandoned after the debris flow event. The debris flow deposited material on pre-existing debris deposits from previous debris flow events. 2010 orthophotograph map base.
------------------------------------------------------------------------

Kiesse Creek: Two embankment failures/debris flows during Frances-Ivan, in September 2004 merged into one~4,000-foot long track that impacted Bear Lake Preserve property and contributed sediment to Bear Lake. Remaining embankment in vicinity of debris flow initiation zones remains unstable.
--------------------------------------------------------------------------------

Sheep Cliff-Glenville: Embankment failure/debris flow during Frances-Ivan, in September 2004. Sedimentation in creek, homes not damaged or threatened. Some of remaining embankment material at the head of the debris flow is unstable.
-------------------------------------------------------------

Mountain. Heritage Development: 2009(?) embankment failure/debris flow, and cut slope failure/debris slide. Embankment failure/debris flow developed in embankment derived from sulfidic rock excavated from cut slope. Cut slope failure developed in colluvium.
-------------------------------------------------------------------------
Dark Road: Home damaged by a cut slope failure/debris slide. Home had to be repositioned onto foundation and is now in foreclosure.
-------------------------------------------------------------------------
Geologic Hazards

Pump Mountain Cut (U.S. 23/Hospital Road): Altered ulramafic(olivine) rock with asbestos minerals is exposed in cuts and other graded areas. Our mapping program will likely result in some small adjustments to the outline of the ultramafic rock map unit into areas not previously mapped as ultramafic rock. Two slope failures were identified: a small rock slide related to talc on planes of weakness in olivine rock (dunite); and a small embankment/sediment pond failure in micaceaous soil. Impacts from the slope failures are on-site. Some additional mapping is planned for this area to evaluate extent of the ultramafic rock and asbestos minerals.

Western North Carolina Chambers of Commerce: Trust Issues

Western North Carolina real estate has two irresolvable issues: costly slope movement events and no insurance coverage. If these combined risks were well-known, buyers would exercise caution.

Most purchasers understand the need for comprehensive home inspections but what they don't know, and are not being told, is that all Western North Carolina mountain real estate should be evaluated for slope stability. These home site investigations should be conducted by state-licensed geotechnical engineers. For expedient reasons, this information is not forthcoming from Western North Carolina Realtors.

The omission of material facts—unstable soil conditions and landslide hazard maps—on Western North Carolina Chamber Web sites raises the question of whether these organizations are legitimately representing the public interest.

Jackson County, NC Chamber of Commerce: Landslide Hazard Disclosure

2011-06-05T14:44:00.000-07:00

Jackson County, NC Landslide Photo— SouthWings Flyover 2010

Jackson County, NC Chamber of Commerce

The Jackson County, NC Chamber of Commerce is one of several dozen regional U. S. Chamber affiliates allowing realty members to advertise Western North Carolina real estate as secure investments.

These no-risk representations are refuted by decades-old federal/state land-use studies which classify the region's mountain soils as impracticable for development. In other words, landslides and soil slippage are expected to have a negative impact on homes and private roads. Experts define critical slopes as those on and above a 15% grade.

These determinants can be found in Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Haywood, Henderson, Jackson, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, Watauga, and Yancey County Soil Surveys. This list is not comprehensive and only reflects those counties covered by the September 2004 disaster declarations.

As the following reports illustrate, Jackson County, NC real estate has considerable building site impediments.

Jackson County, North Carolina: Landslide Hazard Designation

In 1998 federal officials [FEMA] notified the state and twenty-seven Western North Carolina county governments, including Jackson, that the region's mountain slopes were unstable. Six years later, September 2004, debris flows caused loss of life and homes [Macon County] and extensive damage in eighteen other counties. Federal authorities issued two disaster declarations.

Western North Carolina Landslide Hazard Maps

In 2005, the General Assembly allocated funding [post-disaster Stafford Act requirement] for hazard-identification maps. Published landslide maps for Macon, Watauga, and Buncombe Counties show unstable to moderately unstable areas.

If the pending 2011 Appropriations Act becomes law, the Western North Carolina Landslide Hazard Mapping Program will likely be terminated. In 2006, the North Carolina General Assembly considered these maps invaluable public resources.

Jackson County, North Carolina Planning Board 2006 Steep-Slope Subdivision Review and Maps

Jackson County. NC Slope Evaluation Map
Green indicates 30-50% slopes; purple 50-100%

Jackson County, NC Subdivision Map

As growth and development occur at an increasing rate in the County, the natural and manmade limitations to development become more apparent. Topography—primarily steep slopes—has been one of the more significant limitations to development. Map 1 [See Appendix] categorizes the development potential of land in the county based upon its slope, with land having a slope in excess of 30 percent considered to have severe limitations to development and lands with a slope in excess of 40 percent considered not suitable for development. Given these parameters, almost half the land in the county either has severe limitations on development or is considered not suitable for development.

For example: landslides have been reported in Bear Lake Reserve, Water Dance, Hawks Ridge and Mountain Heritage Preserve Subdivisions.

Jackson County, NC Landslide Events: "Not Surprising"

This reprinted North Carolina Geological Survey April 2011 report
outlines recent Jackson County, NC landslide incidents:

Landslide Hazard Mapping Update
Jackson County Planning Board
April 14, 2011

A. Overview of work completed from 2/22/2011 through 4/8/2011.

NCGS staff briefed Planning Board on 2/8/11. Field work began on 2/22/2011 and initially concentrated on sites identified by Robby Shelton. Field crews are now conducting routine mapping at various locations in the county several days a week.

Mapping Summary

Total Number of landslides documented in field: 40
Accompanied by Robby Shelton: 19
Field Crews Only: 21
Landslides on unmodified slopes 15
Landslides on modified slopes 25
Total field data collection locations: 231

B. Major issues.

No major issues with work progress have been identified to date. Given the extent of steep slopes in the County, the number of slope movements and slope movement deposits identified to date is not surprising.

C. Things anticipated/not anticipated.

An embankment failure/debris flow associated with acid-producing rock at the Mountain Heritage development is not unlike similar occurrences with acid-producing rock in Macon, Haywood and Swain Counties. As hoped, field crews have been able to confirm debris flow sites on the ground that were identified from 1953 aerial photography.

D. Information or assistance needed from Planning Board.

Cooperation and interest from County staff, especially Gerald Green, Robby Shelton and Kevin Jamison has greatly facilitated the project. Field guidance and historical information on landslides provided by Robby Shelton has been a great help in expediting the mapping and data collection. Thanks to Kevin Jamison who provided the new 2010 ortho-imagery on 4/11/2011. Identification of any areas of concern within the County will help prioritize sites for field visits.
------------------------------------------------------------------------------------------------------------

Notes on Selected Sites Investigated to Date

Active, Slow-Moving Landslides

Sutton Road weathered-rock slide: Past slide movement affected outbuilding and driveway on upper slope. Continued movement could potentially affect homes at the toe of the slope.

Figure 1. Preliminary map showing the outline of the slow-moving landslide in weathered rock. The shaded area indicates the approximate outline of the slide as of April 2011. Blue dot is a mapping reference location near the upslope extent of the slide. 2010 orthophotograph map base.
------------------------------------------------------------------------------------------------------------

Ramp Cove Debris Slide: Slide reactivated in 2007 after excavation in toe of older, dormant slide that had developed in a pre-existing debris deposit. A home site under construction was abandoned after slide movement covered part of the foundation excavation for a new house. Residences below toe of active slide currently not affected by slide activity.

Figure 2. Preliminary map showing a landslide developed in pre-existing debris deposits in Ramp Cove.The shaded area shows the approximate extent of the active slide as of March 2011. Ground rupture lines outside of the shaded area show the approximate locations of inactive scarps indicating the presence of a feature interpreted as an older, now dormant, debris slide also within pre-existing debris deposits. Yellow dots are mapping reference locations near the upslope extents of the slides. 2010 orthophotograph map base.

-----------------------------------------------------------------------------------------------------------

Green Gables Development: Cut slope failure in debris deposit affecting property, but not immediately threatening residence.

------------------------------------------------------------------------------------------------------------

Tuckaway - U.S. 281 Debris Slide: Cracks observed in embankment of recent NCDOT road repair. Active slide mass below the highway appears to extend downslope to shoreline of Bear Lake. Slide movement appears to be affecting a vacation home.

Figure 3. Preliminary map of an active debris slide and other debris deposits along U.S. 281 near Tuckaway Road. Pink shaded area outlines the extent of the active slide as of April 2011. Orange shaded areas are debris deposits from previous slope movement events. Yellow dot is a mapping reference location near the upslope extent of theslide. 2010 orthophotograph map base.

Figure 4. Photograph of a scarp (ground rupture line) with vertical displacement) within the active area of the Tuckaway-U.S. 281 slide. Ground movement has split the tree straddling the scarp. Other leaning and curved trees in the area indicate slide movement.
-----------------------------------------------------------------------------------------------------------

-----------------------------------------------------------------------------------------------------
Stillwell Branch (EBCI) Weathered-rock Slide: Initial mapping done of cut slope failure/weathered-rock slide above a house site. Additional field work needed to assess any potential hazard to residents.
------------------------------------------------------------------------------------------------------
Debris Flows, Debris Slides, Debris Deposits

Tilley Creek Debris Flow: 1973(?) debris flow that damaged cabin. The run out zone of the debris flow is on an older debris fan surface. The debris flow appears to have initiated on an unmodified (“natural”) slope.

Figure 5. Map showing the path or track (pink shaded area) of a 1973(?) debris flow that damaged a cabin near Tilley Creek Road. The cabin was abandoned after the debris flow event. The debris flow deposited material on pre-existing debris deposits from previous debris flow events. 2010 orthophotograph map base.
------------------------------------------------------------------------

Kiesse Creek: Two embankment failures/debris flows during Frances-Ivan, in September 2004 merged into one~4,000-foot long track that impacted Bear Lake Preserve property and contributed sediment to Bear Lake. Remaining embankment in vicinity of debris flow initiation zones remains unstable.
--------------------------------------------------------------------------------

Sheep Cliff-Glenville: Embankment failure/debris flow during Frances-Ivan, in September 2004. Sedimentation in creek, homes not damaged or threatened. Some of remaining embankment material at the head of the debris flow is unstable.
-------------------------------------------------------------

Mountain. Heritage Development: 2009(?) embankment failure/debris flow, and cut slope failure/debris slide. Embankment failure/debris flow developed in embankment derived from sulfidic rock excavated from cut slope. Cut slope failure developed in colluvium.
-------------------------------------------------------------------------
Dark Road: Home damaged by a cut slope failure/debris slide. Home had to be repositioned onto foundation and is now in foreclosure.
-------------------------------------------------------------------------
Geologic Hazards

Pump Mountain Cut (U.S. 23/Hospital Road): Altered ulramafic(olivine) rock with asbestos minerals is exposed in cuts and other graded areas. Our mapping program will likely result in some small adjustments to the outline of the ultramafic rock map unit into areas not previously mapped as ultramafic rock. Two slope failures were identified: a small rock slide related to talc on planes of weakness in olivine rock (dunite); and a small embankment/sediment pond failure in micaceaous soil. Impacts from the slope failures are on-site. Some additional mapping is planned for this area to evaluate extent of the ultramafic rock and asbestos minerals.

Legislative Actions Threaten Western North Carolina Landslide Hazard Mapping Program

2011-05-15T19:32:00.000-07:00

Current Operations and Capital Improvements Appropriations Act of 2011

The Appropriations Act of 2011 was passed by the House on May 4, 2011.

This bill presses for education-spending reductions, outsourcing of state jobs, and tobacco income/loss compensation. Public forest development will be under the supervision of specially-created private limited dividend corporations.

In addition the House majority wants to significantly enhance development activities by removing regulatory impediments.

North Carolina Department of Environment and Natural Resources

Deregulatory action will be accomplished by underfunding the North Carolina Department of Environment and Natural Resources budget by more than $15,000,000. If the bill is passed as written, the agency tasked with protecting public health and well-being will be sentenced to insignificance.

In other words, private interests will be making decisions for the state.

North Carolina Toxic Pollution

Residents statewide are exposed to health-impairing industrial wastes. Studies document that poisonous manufacturing byproducts contaminate North Carolina air, water and soils. Rather than penalize industry polluters, the state burdens taxpayers with cleanup costs.

Western North Carolina Critical Air Quality

During warm-weather months, smog from coal-burning power plants seriously impair lung function. Because of elevation, Western North Carolina residents are at greater risk of exposure. The situation is so critical that on January 30, 2006 Attorney General Roy Cooper filed a lawsuit on behalf of the citizens of North Carolina against the Tennessee Valley Authority. In his press release Mr. Cooper stated that “TVA’s pollution is making North Carolinians sick, damaging our economy and harming our
environment.” Mr. Cooper did not note that North Carolina coal plants are also releasing harmful particulates.

The following photograph shows Western North Carolina smog conditions in the summer of 2008.
On July 21, 2008, the North Carolina Department of Environment and Natural Resources issued a Code Orange air-quality alert for Western North Carolina counties. This July 21, 2008 Asheville Citizens-Times photo shows smog covering downtown Asheville.

Shale Gas/Oil Extraction: Fracking

Hydrocarbon extraction by way of horizontal drilling is prohibited in North Carolina. Members of the General Assembly want to change that rule. Mitch Gillespie, co-author of House Bill 200, supports fracking and industry reduced-regulation petitions even though these practices are known to contaminate private and public drinking water sources.

Western North Carolina Landslide Hazard Maps

Senate affirmation of the Appropriations Act will likely restrict efforts by the North Carolina Geological Survey to proceed with hazardous-land identification.

Since the passage of the 2005 Hurricane Recovery Act which authorized the nineteen-county Western North Carolina Landslide Hazard Map initiative, state geologists have identified unstable land condition sites in Macon, Watauga, and Buncombe Counties.

Landslide hazard identification maps protect the public from making unwise financial decisions.These material fact maps are not welcomed by the North Carolina Association of Realtors.

Jackson County, NC Real Estate Landslide Concerns

The North Carolina Geological Survey is presently evaluating Jackson County landslide incidents. Without adequate funding these safety reports will not be forthcoming.

Privatization

Decisions made by petrochemical, pharmaceutical, financial, nuclear and housing industries do not inspire trust or confidence. So the question is why should
the state rely on corporate judgment?

Trillium Cashiers, NC Real Estate Landslide/Unstable Soil Concerns

2011-05-10T16:35:00.000-07:00

Jackson County, NC Landslide Map

Jackson County, NC Slope Movements/Slope Movement Deposits Landslide Hazard Map — April 2007

Other than this preliminary study, Jackson County, NC landslide hazard maps have not been released.

Jackson County, NC Landslides

Jackson County, NC Landslide Photo
SouthWings Flyover 2010

Legasus/Waterdance Subdivision Landslide Jackson County, North Carolina—February 2010
Photos: Perry Eury

“These slides are occurring countywide. None as visible as this one, but I’m vetting calls every time it rains.” Robbie Shelton—Jackson County, NC erosion control officer.

Photo Jackson County, NC Airport

Landslide—SouthWings

Jackson County, NC Real Estate Steep-Slope Subdivision Advisory Maps

Jackson County. NC Slope Evaluation Map
Green indicates 30-50% slopes; purple 50-100%

Jackson County, NC Subdivision Map

Jackson County, NC Real Estate Caveat

Jackson County, NC Planning Board Steep-Slope Subdivision acknowledgement:

As growth and development occur at an increasing rate in the County, the natural and manmade limitations to development become more apparent. Topography—primarily steep slopes—has been one of the more significant limitations to development. Map 1 [See Appendix] categorizes the development potential of land in the county based upon its slope, with land having a slope in excess of 30 percent considered to have severe limitations to development and lands with a slope in excess of 40 percent considered not suitable for development. Given these parameters, almost half the land in the county either has severe limitations on development or is considered not suitable for development.

Source: Jackson County, NC Land Development Plan, page 23.

Jackson County, NC Real Estate: Subdivision Development 2000–2005

Jackson County did not require slope/soil/hydrologic feasibility studies as a condition of permit for the following listed subdivisions.

Subdivision Name/Number of Lots

Trillium/550
Chinquapin/200
Mountain Top/325
Bear Lake/675
Balsam Mountain Preserve/354
Lonesome Valley/200
Pinchot/46
The Divide (Bald Rock)/67
Water Dance/94
Phase 1 River Rock/40
Phase 2 River Rock/200
Phase 3 River Rock/1760
Smoke Rise/100
Bear Pen/95
Black Bear Falls/99
Black Rock/32
Dills Cove/70
Bridge Creek/80
Garnet Ridge/100
Mountain River of Cullowhee/31
Cedar Hill/150
Stone Creek Estates/38
Beachwood/76
Whiteside Cliffs/30
Bakers Creek Preserve/ 42

Total Lots 5454

Landslide residential/road damage has been reported in Bear Lake Reserve, Water Dance, Hawks Ridge and Mountain Heritage Preserve Subdivisions.

Trillium Cashiers, NC: Soil Instability Disclosure

A number of Trillium Subdivision home sites are located on unstable steep-slope soils. These soil composites are classified unsuitable for residential development.

The question of adverse building site disclosure, re Jackson County, NC Soil Survey findings, has not been resolved by the North Carolina Real Estate Commission. The Commission did determine in 2010 that Western North Carolina landslide maps are material facts.

2005 Western North Carolina Landslide Hazard Mapping Program

Federal authorities notified twenty-seven county governments in 1998 that the region's mountain slopes were geologically unstable and not suitable for development. Planning boards did not heed these proscriptions and as a consequence homes and private subdivision roads have been built on critical slopes and costly to control soils.

September 2004 landslide events, which included fatalities and wide-spread property loss, prompted federal intervention. In February 2005, the North Carolina General Assembly agreed to formally initiate the Western North Carolina Landslide Hazard Mapping Program for nineteen high-risk counties

Counties covered by the Hurricane Recovery Act: Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Haywood, Henderson, Jackson, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, Watauga, and Yancey.

The North Carolina Geological Survey has published landslide/soil hazard maps for Macon '06, Watauga '08 and Buncombe '09. Geologic Information Systems show that significant portions of completed or proposed building sites in these three counties were sited on unstable to moderately stable slopes.

Landslide Insurance

A note of caution: landslide insurance is not purchasable.

Jackson County, North Carolina Real Estate: Landslides "Not Surprising"

2011-05-10T16:30:00.000-07:00

Jackson County, NC Realtors Fail to Disclose Mountain Slope Landslide/Soil Hazards

Data from soil surveys and North Carolina geologists find that Jackson County, NC real estate and HOA private roads are subject to slope failures, debris flows and underground landslides. These identifiable land impediments are not referenced on MLS listings, sales contracts and Subdivision Street Disclosure Statements.

Adverse building site conditions are material facts yet this information has not been forthcoming from Jackson County, NC Realtors. This omission is curious since the planning board stated in 2006 that approximately 50% of Jackson County land is unstable.

This recent North Carolina Geological Survey report details Jackson County, NC landslides:

Landslide Hazard Mapping Update
Jackson County Planning Board
April 14, 2011

A. Overview of work completed from 2/22/201 through 4/8/2011.

NCGS staff briefed Planning Board on 2/8/11. Field work began on 2/22/2011 and initially concentrated on sites identified by Robby Shelton. Field crews are now conducting routine mapping at various locations in the county several days a week.

Mapping Summary

Total Number of landslides documented in field: 40
Accompanied by Robby Shelton: 19
Field Crews Only: 21
Landslides on unmodified slopes 15
Landslides on modified slopes 25
Total field data collection locations: 231

B. Major issues.

No major issues with work progress have been identified to date. Given the extent of steep slopes in the County, the number of slope movements and slope movement deposits identified to date is not surprising.

C. Things anticipated/not anticipated.

An embankment failure/debris flow associated with acid-producing rock at the Mountain Heritage development is not unlike similar occurrences with acid-producing rock in Macon, Haywood and Swain Counties. As hoped, field crews have been able to confirm debris flow sites on the ground that were identified from 1953 aerial photography.

D. Information or assistance needed from Planning Board.

Cooperation and interest from County staff, especially Gerald Green, Robby Shelton and Kevin Jamison has greatly facilitated the project. Field guidance and historical information on landslides provided by Robby Shelton has been a great help in expediting the mapping and data collection. Thanks to Kevin Jamison who provided the new 2010 ortho-imagery on 4/11/2011. Identification of any areas of concern within the County will help prioritize sites for field visits.
------------------------------------------------------------------------------------------------------------

Notes on Selected Sites Investigated to Date

Active, Slow-Moving Landslides

Sutton Road weathered-rock slide: Past slide movement affected outbuilding and driveway on upper slope. Continued movement could potentially affect homes at the toe of the slope.

Figure 1. Preliminary map showing the outline of the slow-moving landslide in weathered rock. The shaded area indicates the approximate outline of the slide as of April 2011. Blue dot is a mapping reference location near the upslope extent of the slide. 2010 orthophotograph map base.
------------------------------------------------------------------------------------------------------------

Ramp Cove Debris Slide: Slide reactivated in 2007 after excavation in toe of older, dormant slide that had developed in a pre-existing debris deposit. A home site under construction was abandoned after slide movement covered part of the foundation excavation for a new house. Residences below toe of active slide currently not affected by slide activity.

Figure 2. Preliminary map showing a landslide developed in pre-existing debris deposits in Ramp Cove.The shaded area shows the approximate extent of the active slide as of March 2011. Ground rupture lines outside of the shaded area show the approximate locations of inactive scarps indicating the presence of a feature interpreted as an older, now dormant, debris slide also within pre-existing debris deposits. Yellow dots are mapping reference locations near the upslope extents of the slides. 2010 orthophotograph map base.

-----------------------------------------------------------------------------------------------------------

Green Gables Development: Cut slope failure in debris deposit affecting property, but not immediately threatening residence.

------------------------------------------------------------------------------------------------------------

Tuckaway - U.S. 281 Debris Slide: Cracks observed in embankment of recent NCDOT road repair. Active slide mass below the highway appears to extend downslope to shoreline of Bear Lake. Slide movement appears to be affecting a vacation home.

Figure 3. Preliminary map of an active debris slide and other debris deposits along U.S. 281 near Tuckaway Road. Pink shaded area outlines the extent of the active slide as of April 2011. Orange shaded areas are debris deposits from previous slope movement events. Yellow dot is a mapping reference location near the upslope extent of theslide. 2010 orthophotograph map base.

Figure 4. Photograph of a scarp (ground rupture line) with vertical displacement) within the active area of the Tuckaway-U.S. 281 slide. Ground movement has split the tree straddling the scarp. Other leaning and curved trees in the area indicate slide movement.
-----------------------------------------------------------------------------------------------------------

-----------------------------------------------------------------------------------------------------
Stillwell Branch (EBCI) Weathered-rock Slide: Initial mapping done of cut slope failure/weathered-rock slide above a house site. Additional field work needed to assess any potential hazard to residents.
------------------------------------------------------------------------------------------------------
Debris Flows, Debris Slides, Debris Deposits

Tilley Creek Debris Flow: 1973(?) debris flow that damaged cabin. The run out zone of the debris flow is on an older debris fan surface. The debris flow appears to have initiated on an unmodified (“natural”) slope.

Figure 5. Map showing the path or track (pink shaded area) of a 1973(?) debris flow that damaged a cabin near Tilley Creek Road. The cabin was abandoned after the debris flow event. The debris flow deposited material on pre-existing debris deposits from previous debris flow events. 2010 orthophotograph map base.
------------------------------------------------------------------------

Kiesse Creek: Two embankment failures/debris flows during Frances-Ivan, in September 2004 merged into one~4,000-foot long track that impacted Bear Lake Preserve property and contributed sediment to Bear Lake. Remaining embankment in vicinity of debris flow initiation zones remains unstable.
--------------------------------------------------------------------------------

Sheep Cliff-Glenville: Embankment failure/debris flow during Frances-Ivan, in September 2004. Sedimentation in creek, homes not damaged or threatened. Some of remaining embankment material at the head of the debris flow is unstable.
-------------------------------------------------------------

Mountain. Heritage Development: 2009(?) embankment failure/debris flow, and cut slope failure/debris slide. Embankment failure/debris flow developed in embankment derived from sulfidic rock excavated from cut slope. Cut slope failure developed in colluvium.
-------------------------------------------------------------------------
Dark Road: Home damaged by a cut slope failure/debris slide. Home had to be repositioned onto foundation and is now in foreclosure.
-------------------------------------------------------------------------
Geologic Hazards

Pump Mountain Cut (U.S. 23/Hospital Road): Altered ulramafic(olivine) rock with asbestos minerals is exposed in cuts and other graded areas. Our mapping program will likely result in some small adjustments to the outline of the ultramafic rock map unit into areas not previously mapped as ultramafic rock. Two slope failures were identified: a small rock slide related to talc on planes of weakness in olivine rock (dunite); and a small embankment/sediment pond failure in micaceaous soil. Impacts from the slope failures are on-site. Some additional mapping is planned for this area to evaluate extent of the ultramafic rock and asbestos minerals.

Jackson County, North Carolina Real Estate: Landslides "Not Surprising"

2011-04-30T19:52:00.000-07:00

Landslide Hazard Mapping Update
Jackson County Planning Board
April 14, 2011

A. Overview of work completed from 2/22/201 through 4/8/2011.

NCGS staff briefed Planning Board on 2/8/11. Field work began on 2/22/2011 and initially concentrated on sites identified by Robby Shelton. Field crews are now conducting routine mapping at various locations in the county several days a week.

Mapping Summary

Total Number of landslides documented in field: 40
Accompanied by Robby Shelton: 19
Field Crews Only: 21
Landslides on unmodified slopes 15
Landslides on modified slopes 25
Total field data collection locations: 231

B. Major issues.

No major issues with work progress have been identified to date. Given the extent of steep slopes in the County, the number of slope movements and slope movement deposits identified to date is not surprising.

C. Things anticipated/not anticipated.

An embankment failure/debris flow associated with acid-producing rock at the Mountain Heritage development is not unlike similar occurrences with acid-producing rock in Macon, Haywood and Swain Counties. As hoped, field crews have been able to confirm debris flow sites on the ground that were identified from 1953 aerial photography.

D. Information or assistance needed from Planning Board.

Cooperation and interest from County staff, especially Gerald Green, Robby Shelton and Kevin Jamison has greatly facilitated the project. Field guidance and historical information on landslides provided by Robby Shelton has been a great help in expediting the mapping and data collection. Thanks to Kevin Jamison who provided the new 2010 ortho-imagery on 4/11/2011. Identification of any areas of concern within the County will help prioritize sites for field visits.
------------------------------------------------------------------------------------------------------------

Notes on Selected Sites Investigated to Date

Active, Slow-Moving Landslides

Sutton Road weathered-rock slide: Past slide movement affected outbuilding and driveway on upper slope. Continued movement could potentially affect homes at the toe of the slope.

Figure 1. Preliminary map showing the outline of the slow-moving landslide in weathered rock. The shaded area indicates the approximate outline of the slide as of April 2011. Blue dot is a mapping reference location near the upslope extent of the slide. 2010 orthophotograph map base.
------------------------------------------------------------------------------------------------------------

Ramp Cove Debris Slide: Slide reactivated in 2007 after excavation in toe of older, dormant slide that had developed in a pre-existing debris deposit. A home site under construction was abandoned after slide movement covered part of the foundation excavation for a new house. Residences below toe of active slide currently not affected by slide activity.

Figure 2. Preliminary map showing a landslide developed in pre-existing debris deposits in Ramp Cove.The shaded area shows the approximate extent of the active slide as of March 2011. Ground rupture lines outside of the shaded area show the approximate locations of inactive scarps indicating the presence of a feature interpreted as an older, now dormant, debris slide also within pre-existing debris deposits. Yellow dots are mapping reference locations near the upslope extents of the slides. 2010 orthophotograph map base.

-----------------------------------------------------------------------------------------------------------

Green Gables Development: Cut slope failure in debris deposit affecting property, but not immediately threatening residence.

------------------------------------------------------------------------------------------------------------

Tuckaway - U.S. 281 Debris Slide: Cracks observed in embankment of recent NCDOT road repair. Active slide mass below the highway appears to extend downslope to shoreline of Bear Lake. Slide movement appears to be affecting a vacation home.

Figure 3. Preliminary map of an active debris slide and other debris deposits along U.S. 281 near Tuckaway Road. Pink shaded area outlines the extent of the active slide as of April 2011. Orange shaded areas are debris deposits from previous slope movement events. Yellow dot is a mapping reference location near the upslope extent of the slide. 2010 orthophotograph map base.

Figure 4. Photograph of a scarp (ground rupture line) with vertical displacement) within the active area of the Tuckaway-U.S. 281 slide. Ground movement has split the tree straddling the scarp. Other leaning and curved trees in the area indicate slide movement.
-----------------------------------------------------------------------------------------------------------

-----------------------------------------------------------------------------------------------------
Stillwell Branch (EBCI) Weathered-rock Slide: Initial mapping done of cut slope failure/weathered-rock slide above a house site. Additional field work needed to assess any potential hazard to residents.
------------------------------------------------------------------------------------------------------
Debris Flows, Debris Slides, Debris Deposits

Tilley Creek Debris Flow: 1973(?) debris flow that damaged cabin. The run out zone of the debris flow is on an older debris fan surface. The debris flow appears to have initiated on an unmodified (“natural”) slope.

Figure 5. Map showing the path or track (pink shaded area) of a 1973(?) debris flow that damaged a cabin near Tilley Creek Road. The cabin was abandoned after the debris flow event. The debris flow deposited material on pre-existing debris deposits from previous debris flow events. 2010 orthophotograph map base.
------------------------------------------------------------------------

Kiesse Creek: Two embankment failures/debris flows during Frances-Ivan, in September 2004 merged into one~4,000-foot long track that impacted Bear Lake Preserve property and contributed sediment to Bear Lake. Remaining embankment in vicinity of debris flow initiation zones remains unstable.
--------------------------------------------------------------------------------

Sheep Cliff-Glenville: Embankment failure/debris flow during Frances-Ivan, in September 2004. Sedimentation in creek, homes not damaged or threatened. Some of remaining embankment material at the head of the debris flow is unstable.
-------------------------------------------------------------

Mountain. Heritage Development: 2009(?) embankment failure/debris flow, and cut slope failure/debris slide. Embankment failure/debris flow developed in embankment derived from sulfidic rock excavated from cut slope. Cut slope failure developed in colluvium.
-------------------------------------------------------------------------
Dark Road: Home damaged by a cut slope failure/debris slide. Home had to be repositioned onto foundation and is now in foreclosure.
-------------------------------------------------------------------------
Geologic Hazards

Pump Mountain Cut (U.S. 23/Hospital Road): Altered ulramafic(olivine) rock with asbestos minerals is exposed in cuts and other graded areas. Our mapping program will likely result in some small adjustments to the outline of the ultramafic rock map unit into areas not previously mapped as ultramafic rock. Two slope failures were identified: a small rock slide related to talc on planes of weakness in olivine rock (dunite); and a small embankment/sediment pond failure in micaceaous soil. Impacts from the slope failures are on-site. Some additional mapping is planned for this area to evaluate extent of the ultramafic rock and asbestos minerals.

Jackson County, NC Real Estate Landslide/Soil Hazard Disclosure Statement

2011-04-05T17:20:00.000-07:00

Jackson County, NC Real Estate
Landslide/Soil Hazard Situation Report

Photos of landslide damage to a Jackson County, NC home. The property, auctioned by Williams & Williams; is located at 808 Hawks Ridge Dr. Whittier, NC 28789 in the Hawks Ridge Subdivision. Williams & Williams provided the following soil condition caveat:

Soil Instability Disclosure. This Property has been identified as possibly being effected by soil instability. In some instances, soil instability can be associated with landslides, rock falls, foundation shifting problems, or settlement and cracking problems. Buyer should conduct an investigation prior to bidding, to determine whether or not the property contains said defect and the extent of any possible problem. Buyer shall undertake said investigation at their expense, and any offer of purchase shall not be contingent upon the results of such investigation. Bidding on this Property at auction is Buyer's confirmation of their election to accept said property “as-is, where-is,” and Buyer's agreement to assume all responsibility for any necessary repairs or remediation. Buyer further understands that neither the Seller, nor Williams & Williams, or their agents make any assertions or guarantees as to the condition of the Property.

Buyers received fair warning on the Hawks Ridge property, but soil instability disclosures do not appear on other Jackson County,NC steep-slope MLS listings. This is a curious omission considering that the Jackson County Soil Survey provides the same information. Also please refer to Michael Sherrill's book, "1979-1999: Two Decades of Progress in Western North Carolina Soil Surveys."

Debt-Collection Practices Include Arrest Warrants and Incarceration

2011-04-03T19:56:00.000-07:00

The Wall Street Journal report, "Welcome to Debtors' Prison, 2011 Edition," reveals that:

Some lawmakers, judges and regulators are trying to rein in the U.S. debt-collection industry's use of arrest warrants to recoup money owed by borrowers who are behind on credit-card payments, auto loans and other bills.

More than a third of all U.S. states allow borrowers who can't or won't pay to be jailed.

Last year the Star Tribune focused attention on the use of debt-arrest warrants.

Debtor Prisons

Prior to the federal/states' abolishment of debtor prisons, creditors commonly used this punitive action to force debt repayment. As noted by the media, influential debt-collection firms have persuaded states to revive this practice.

The Star Tribune recently raised the question: "Is jailing debtors the same as debtors jail?"

Findings by the newspaper suggest that debt-arrest warrants are illegal measures:

"We have created a de facto debtors prison system in the United States that is largely unconstitutional," said Judith Fox, a law professor at Notre Dame Law School. "In some parts of the country, people are so fearful of arrest they are scrambling to pay money they might not even owe."

In states such as Indiana and Illinois, people are being locked up for not making court-ordered payments. Known as "pay or stay," it can mean days in jail and multiple arrests for the same debt. Some legal experts say the practice is unconstitutional because the arrest is directly linked to the failure to pay a debt.

In Minnesota, the issue is less clear because warrants to arrest debtors are issued for disobeying court orders, such as not filling out a financial disclosure form and missing a required hearing, not for failure to pay debt. So long as someone fulfills the court order, they can avoid incarceration.

Senate Bill 3888: End Debt Collector Abuse Act of 2010

Al Franken has proposed amending the Fair Debt Collection Practices Act to protect consumers from corporate malfeasance. Congress has declined to intervene in this matter.

Americans face numerous indignities, but industry-sponsored detention should not be one of them.

Debtor Rights

Debt-collection firms have a disturbing history of violating federal law. For additional information, please read the following reports.

State Statues of Limitation on Debt Collection

FTC Actions Taken Against Debt Collectors

Mountainaircc Real Estate: Landslide Concerns

2011-03-26T15:55:00.000-07:00

Mountain Air: A Hazardous-Land Subdivision

The Mountain Air residential community, located in Yancey County, NC was sited on geologically-hazardous land. Federal authorities state that landslides and slope failures can be expected.

Wurster engineering photos of before and after Mountainaircc/Austin View Villas underground landslide repair—

Wurster Engineering and Construction, Inc.— Description of Mountainaircc/ Austin View Villas landslide remediation:

Continuous slope movement was causing considerable damage to the Austin View Villas Condominiums. Slope inclinometers indicated that slope movement was occurring about 40 ft below the condominiums and extending to the road above the condominiums.

WEC installed patterned ground anchors to stabilize the slope. Patterned ground anchors consisted of 85 to 110 ft long strand tieback anchors connected to 8 ft by 8 ft reinforced concrete pads. Once the tieback construction was completed, the slope was backfilled.

Subsequent slope inclinometer readings indicate that slope movement has ceased. The condominiums were releveled and restored by others.

Legal Actions re Mountain Air Development Company

In 2003-2004, earth movement impacted steep slope condominium buildings in the residential community known as Mountain Air (Mountainaircc). The landslide caused structural damage to Austin View Villas and Hemlock Bluff Villas. Affected property owners sued the developer, Mountain Air Development Corporation, for negligence and other causes of action.

Austin View Villas Landslide Property Damage Complaint
(07 CVS 19)

…in 2003 the foundations of two buildings of the five unit Austin View Villas began cracking and in late 2004 the foundations of the Units began and/or continued moving and “sliding” on the side of the mountain upon which the Units had been constructed, causing the foundations, wall structures, floors, and other components of the Units to crack and to deteriorate substantially. As a consequence, the Units became-and remain-completely uninhabitable and the Intervenor Plaintiffs have been deprived entirely of the use and enjoyment of their Units since January 2005.

Hemlock Bluff Villas Landslide Property Damage Complaint

During the summer of 2004, Building C, one of the Hemlock Bluffs condominium units began shifting on its slope site. Court documents reveal that:

Hemlock has been severely damaged, including separating of the decks from the buildings, cracking in foundation and supports, movement of stairs and walls, and otherwise and Plaintiff has spent and will spend substantial sums of money for the extraordinary repairs and reconstruction of the buildings and major portions of the common elements at Hemlock.

The complaint, Hemlock Bluff Villas Condominium Association Inc. vs. Mountain Air Development Corporation et al (06 CVS 51), was settled out of court.

Mountain Air Landslide Insurance Issues

Insurers have evaluated the probability of earth-movement property loss and as a result, this hazard is not covered. These restrictions apply to all US-issued homeowner policies.

Western North Carolina Landslide Hazard Maps

Due to the region's adverse geologic conditions, federal authorities (FEMA) obligated the state in 2005 to produce landslide hazard identification maps for nineteen at-risk mountain counties. Maps for Macon, Watauga and Buncombe Counties mark areas of critical slope status and the need for geo-technical on-site analysis.

Landslide Predictives: Steep Slopes and Colluvial Soils

Yancey County, NC steep slope soils are "ill-suited" for home sites and infrastructure. Reference: Yancey County, NC Soil Survey

Steep slopes are universally defined as land on or above a 15% grade.

Failure to Disclose

Mountain Air Development Corporation and agencies listing Mountain Air real estate have several unmet obligations. These parties have failed to disclose the Western North Carolina Landslide Hazard Mapping Program, Austin View/Hemlock Bluff Villas slope repair and contraindicated Mountain Air soil findings.

Centex Violations re Bear Lake Reserve

2011-03-23T19:49:00.000-07:00

Bear Lake Reserve Subdivision Jackson County, NC

Photograph of Bear Lake Prior to Development

Bear Lake Reserve Site map

Bear Lake Reserve, a 2,100-acre Jackson County, NC steep slope subdivision, was planned and partially developed by Centex Destination Properties. Tax records show that Centex paid $11 million for the original 770-acre tract in April 2003.

Centex contractors began laying in Phase One roads and home sites in early 2004. When the project is completed, the Bear Lake Reserve Property Owners' Association will be financially responsible for water, sewer and road systems.

Macfarlan Capital Partners, L.P purchased Bear Lake Reserve in April 2008 for an undisclosed amount. TerraMesa Resorts, an MCP-formed entity, is currently in charge of operations.

Shortly after the acquisition of Bear Lake Reserve, TerraMesa learned that Centex had violated Duke Power shoreline policy and state regulations.

Bear Lake Reserve property owners received the following Centex-violation status report in October 2008:

October 29, 2008

Dear Bear Lake Homeowner,

The purpose of this letter is to bring you up to date on several issues concerning the community and its infrastructure including the docks. Many of these issues were raised at the Annual Meeting in September and we would like to bring you up to date on the efforts taken to address them. Each of these issues has involved interaction with Centex Homes and, in the case of the docks, Duke Energy. The Terramesa team has been fully engaged with each of these entities in the effort to bring our concerns to a resolution.

Throughout the process, Terramesa has maintained a dialogue with Centex Homes and has communicated the urgency of these matters to Centex. Terramesa is committed to keeping you informed. As such, a web-link has been created to provide you with the latest information and progress. This letter will provide you with a baseline of information, which will be updated via the web-link. You can reach the blog site by going to: http://blrcommunication.blogspot.com/. This letter will also be posted on the blog site.

Dock Issues with Duke Energy

We first sent a letter to owners on September 17th concerning issues raised by Duke Power as to the validity of certain dock permits originally obtained by Centex. At the time, we were still researching the issues and waiting for Centex Homes to provide us with their response to Duke Power on the issues raised, so we were not in a position to provide more detailed information. However, we feel that it is appropriate to lay out for you the chronology of events that have taken place since this issue was first raised.

Since June, Terramesa has met with Duke Energy on site on two occasions. The first meeting was on June 18th. This meeting was our introduction to the situation. Duke Energy approached Terramesa on the issue due to our status as the current developer of the Bear Lake Reserve property. At that time, we were informed of the concern as to the validity of certain permits and/or docks on Bear Lake. Duke Energy Lake Management personnel provided an overview indicating that Duke had accomplished an inventory of the docks and stair facilities within the Bear Lake Reserve subdivision.

Following that meeting, Duke Energy provided written notification of the specific issues by letter, dated August 4th, which was addressed to TerraMesa. In its letter, Duke pointed to a lake management policy for Bear Lake Reserve adopted by Duke in 2003, which sets a limit on private docks per amount of shoreline. Although Duke recognized that Centex had been given a number of permits for private docks that were considered grandfathered from this policy, Duke took the position that the permits were only applicable to certain lots and that the unused permits have since expired. Duke’s letter stated that there were currently more docks within the shore frontage of Bear Lake Reserve than permitted under their current policy, and called for a plan to address this issue by September 29th.

Although the letter from Duke was addressed to TerraMesa, as the current developer of the Bear Lake Reserve project, the permits and the dock installations and alleged violations raised by Duke occurred during the ownership of the property by Centex Homes. Accordingly, we forwarded the letter to Centex Homes and requested that they be prepared to respond to Duke’s issues.

On August 23rd, Terramesa and senior Centex Homes management met on-site at Bear Lake Reserve to address infrastructure and dock issues. In preparation, the Terramesa team conducted an extensive infrastructure and dock survey documenting a complete list of concerns to be addressed with Centex Homes. As part of that meeting, the Centex Homes representatives were provided a copy of the infrastructure and dock survey findings and were given a property and lake tour identifying general and specific issues. Terramesa informed Centex Homes of the necessity to bring these items to closure and, specifically, the need to respond to Duke Energy on the dock issue by September 29th.

As a follow-up on the dock issue and, as part of our effort to develop a good working relationship with Duke Energy, Terramesa invited the Duke Energy Lake Management Representative to meet on-site on September 8th. During the September 8th meeting, Terramesa posed clarifying questions to Duke Energy and conducted an on-lake tour of several sections of the shoreline. Following that meeting, on September 17th, Centex Homes sent two representatives to Bear Lake Reserve to look for and recover any dock permit related information that may have been left behind in the construction records file. Terramesa hosted the individuals for the afternoon and provided them access to the inactive file storage area.

On September 29th, Centex Homes, through their attorney, responded to Duke Energy with regard to the August 4th Duke Energy letter. In the response, Centex Homes requested additional information from Duke Energy and expressed a desire to resolve the issue, but challenged Duke’s position on the issues.

During the interim timeframe, Duke Energy has continued to research the permitting process and the development and application of policies applicable to Bear Creek Lake. As a result, Duke Energy drafted an October 16th clarifying letter to Terramesa, which was received by us on October 20th. In the letter, Duke Energy provided very specific information on the affected shoreline sections and identified a series of actions required to bring the shoreline into compliance with the applicable Duke Energy pier and shoreline management policies. In this letter Duke modified their position to the better from that expressed in their August 4th letter, but they continue to raise concerns that we believe require further discussion.

This letter, like the one of August 4th, was passed onto Centex Homes for their use in addressing the issue with Duke Energy and with you, the affected owners. As we did before, because the resolution of the issue regards actions taken by Centex Homes and involves issues of a contractual nature, Terramesa has asked Centex Homes to develop the response to Duke Energy and to address the matter with you directly. We are working with Centex Homes to resolve this matter, and we believe that there is a good opportunity to craft a solution that will be satisfactory to all parties. Please know that we share your concern about this issue; in fact, it directly affects our future development plans so we have every interest in resolving this matter in a manner that provides for existing and future lot owners with dock access to the extent possible.

Utility Infrastructure Issues

Since acquiring Bear Lake Reserve from Centex Homes, we have learned that a number of the water lines installed by Centex Homes throughout Phase II were installed without the proper permitting from State of North Carolina, and did not receive the proper inspection that would have occurred during the permitting process prior to their being buried and put in use. We have also learned that as-built drawings showing the location of these lines were not prepared, which would have been required as part of the permitting process as well. As a result of failure to obtain the necessary permits, we have been informed by the State that no service connections can be made to these water lines until permits have been obtained and the lines have been inspected and certified.

The lack of as-built plans has also hampered our ability to install other utility lines in these areas, because we do not want to dig up the existing lines. Also, in the event that there is an issue with the integrity of the lines that have been installed, if we were to open up the trenches where these pipes are installed, we would take on the liability for any problems with the water lines, as it would not be possible to demonstrate that the line was defective prior to our efforts, and since these lines were not previously certified, this is a risk we are not willing to undertake.

We have been in contact with Centex Homes concerning this matter and they have retained engineering assistance and are preparing the necessary permit application. On October 6th, Terramesa hosted a Centex Homes representative on site at Bear Lake Reserve and provided the appropriate professional staff representatives to serve as escorts. During the visit, each water delivery issue was addressed, inventoried, and photographed. Centex Homes is keeping us informed about their progress on this matter, and we have reason to believe that it will be resolved in the coming months, so that we will be able to complete the installation of utilities to these areas.

As you can see, the past few months we have been busy. Terramesa has invested a significant effort into resources and time in the identification of and documentation of issues that concern our community. We believe that the efforts to get to a common level of understanding will benefit the community and we continue to urge Centex Homes to support speedy resolution. In the meantime, in order to keep you informed, Terramesa will support a weekly update of the previously mentioned web-link and continues its offer to host a Centex Homes sponsored information session at the Lake Club.

Sincerely,

Todd S. White

President, Terramesa Development Group

“Our Family Creating Memories for Your Family”

P.O. Box 96 - 412 Lake Forest Drive - Tuckasegee, North Carolina 28783

Phone (828) 293-7414 - Fax (828) 293-3920

http://www.bearlakereserve.com//www.terramesaresorts.com/

____________________________________________________________
____________________________________________________________

Bear Lake Reserve Landslide Issues

Bear Lake Reserve property owners were advised on November 21, 2008 that Centex would be held responsible for Southshore Mountain Lodges, Lakeshore Condos and Juneberry Cottages slope failures.

Bear Lake Reserve Landslide Issues

2011-03-23T15:23:00.000-07:00

Bear Lake Reserve Subdivision Jackson County, North Carolina

Photograph of Bear Lake Prior to Development

Bear Lake Reserve Subdivision Site Map

Land for the subsequently-named Bear Lake Reserve Subdivision was purchased by Centex Destination Properties in April 2003. Tax records indicate that Centex paid $11 million for the original 770-acre tract. By early 2004, the company's contractors were cutting roads and laying out home sites in Phase One of the proposed 800-residence subdivision.

When the Bear Lake Reserve project is finished, the Property Owners' Association will assume responsibility for maintaining water, sewer and road systems in the enlarged 2,100-acre subdivision.

Macfarlan Capital Partners, L.P. acquired Bear Lake Reserve in April 2008 for an undisclosed sum. TerraMesa Resorts, an MCP-formed entity, is presently in charge of operations.

Jackson County, NC Real Estate: Landslide Hazard Concerns

If Centex had conducted due diligence before investing in Jackson County mountain land, the company would have known that the Bear Lake Reserve site was "ill-suited" for residential development because its steep slope soils require “major increase in construction effort, special design, or intensive maintenance.” References: Jackson County, NC Soil Survey/ Jackson County, NC Land Development Plan advisory.

Jackson County, NC Landslide Photo
SouthWings Flyover 2010

Legasus/Waterdance Subdivision Landslide Jackson County, North Carolina—February 2010
Photos: Perry Eury

“These slides are occurring countywide. None as visible as this one, but I’m vetting calls every time it rains.” Robbie Shelton—Jackson County, NC erosion control officer.

Jackson County, NC landslide photo 2010—
SouthWings

Since the Bear Lake Reserve Centex-land purchase, stakeholders have had a steep learning curve.

The following reprinted report details Bear Lake Reserve areas of concern. MCP, the current developer, is holding Centex responsible.

Bear Lake Reserve Property Owners Update November 21, 2008

Phases I and II

This past week concluded a major review of the progress on infrastructure projects by the Terramesa team. We reviewed each of the line items that have been identified as discrepancies with a specific focus on the water distribution to Phase I lots and correction of hillside stability.

In addition to the hillside stability issues, our Land Development and Resident Civil Engineer reviewed the progress on extension of the water system to several points within Phase I and Phase II that require additional pumping and piping. These plans are in preliminary review and are the basis for the project execution plan which Centex will review.

Lakeshore Condos and Juneberry Cottages

Engineering plans for slide correction at the Lakeshore Condos and the Juneberry Cottages were reviewed and forwarded to Centex. Centex is working through the approval process which will include on-site inspections. Once approved these projects will get underway and will be completed.

Lilywood Court and Purpletop Drive

Final grading and utility installation was completed on Lilywood Drive. Purple Top paving has been completed and the erosion control and storm water management components have been put in place.

The next step will be a review of each additional site for preparedness. We want to ensure that we accomplish the infrastructure tie-ins in the most efficient manner requiring some preliminary research and confirmation of the current status.

Southshore Mountain Lodges

Centex made a return visit last week to do a site review of the geotechnical repair proposal for the slide at Southshore mountain lodges. We are currently waiting for approval to begin repairs.

Centex Corporation: Hazardous-Land Subdivisions

The Bear Lake Reserve subdivision tract has two documented geologic impediments: landslide-prone slopes and erodible soils. These perils are significant financial burdens for homeowners: insurers will not cover earth-movement related property loss.

It is not known whether Macfarlin Capital Group and Bear Lake Reserve property owners are aware that Centex, now Pulte, has a record of using unstable land tracts for residential endeavors.

Fort Bragg Infant Fatalities Continue

2011-03-19T13:22:00.000-07:00

Fort Bragg Infant Deaths

Fort Bragg infant Jaxson Garza died for unknown reasons on February 24, 2011. His death, coupled with the loss of eleven other military-housed babies, is a statistical aberration.

Twelve Fort Bragg infants have died since February 2007. Medical examiners have ruled SIDS for one fatality, the cause of the other infant deaths remain undetermined.

Some parents were advised after their children's deaths that sulfur-emitting wallboard could be a factor. Three fatalities have been linked to occupancy in one residence. Even though investigators responsible for the 2011 Consumer Product Safety Commission report found no environmental causation, other professionals disagree.

U.S. Consumer Product Safety Commission Report February 7, 2011 re Cause of Unexplained Infant Mortality

In early October 2010, personnel from Environmental Health & Engineering, Inc. (EH&E) conducted a series of on-site tests in two of the suspect residences. Summary as follows:

Findings: Neither Fort Bragg home met the criteria for identification of homes with problem drywall as defined by the CPSC/U.S. Department of Housing and Urban Development (HUD) interim guidance document (CPSC/HUD 2010).

Conclusions: Based on the observations of the EH&E field staff and analysis of the results of the in-home sampling and testing, as well as interviews with CID and CPSC field investigators and a review of previously conducted testing of drywall from the homes, EH&E concludes that 144 Groesbeek Street and 4 Darden Street do not contain problem drywall.

Other infant-death homes have not been evaluated for toxins.

While EH&E was analyzing data, another Fort Bragg baby died in November 2010.

The EH&E inspection team determined that Chinese drywall was not present in the Groesbeek and Darden structures. Whether the absence of this federally-required corroborating evidence influenced the scope of the investigation is not known.

Conflicting Fort Bragg Consumer Product Safety Commission Studies re Sulfur-Emitting Wallboard

On November 23, 2010 the Fayetteville Observer reported that CPSC field employees on two occasions had found persuasive evidence of elevated sulfur levels in two of the under-scrutiny homes. The initial report noted presence of rotten egg odors, blackened copper and corroded metals.

Sulphur dioxide and hydrogen sulfide

Sulphur in its natural state is a benign element but industry-produced chemical by products, i. e. sulphur dioxide (SO2) and hydrogen sulfide, are harmful.

Hydrogen sulfides produce warning signals by releasing acrid odors but they also impair the sense of smell. As a consequence those being poisoned are unaware of the threat. Breathing hydrogen sulfides can result in death.

American-Made Drywall Health Hazards

ProPublica reported on December 15, 2010 that synthetic ( flue gas desulfurized) gypsum, an American-manufactured wallboard is and has been commonly used for home construction. Litigation documents indicate that this relatively-new coal ash composite wallboard poses risks similar to those of the Chinese product. For additional information regarding the use of this industry/government-promoted manufacturing process please see FGD research document.

Home Insurance Faulty-Material Exclusion Clauses

The cost to remediate a sulfur-contaminated residence is generally $100,000 or more. By use of exclusion clauses, homeowners’ policies have avoided liability for these damages.

Failure to Communicate

The U. S. Department of Housing and Urban Development and the Consumer Product Safety Commission are still collating data re domestic/foreign made sulfur-emitting wallboard. As a result of industry demands, there is no regulation over American-manufactured synthetic gypsum or disclosure of health risks linked to this product.

If the original CPSC field report findings are correct, the off-gassing sulfur wallboards were risks to infants' health. But there may be other contributing factors.

Fort Bragg Soil and Water Contamination Report

Some of the substantive findings in the 2009 Fort Bragg hazardous-land assessment report:

Contaminants of Concern: Explosives, Metals, Pesticides, Petroleum, Oil and Lubricants (POL), Polychlorinated Biphenyls (PCB), Semi-volatiles (SVOC), Volatiles (VOC)

Media of Concern: Groundwater, Sediment, Soil, Surface Water

Groundwater underlying Fort Bragg has been shown to be contaminated with solvents, POL, metals, and pesticides primarily at FTBR-069 and -103. Groundwater at Fort Bragg is not currently used as a source for drinking water.

For reasons cited above, federal authorities have classified various Fort Bragg contamination sites not acceptable for any public use:

Landfill restriction - Restrict access to the site, Landfill restriction - Restrict vehicular traffic, Media specific restriction - Prohibit groundwater extraction that interferes with Remedial Action system, Media specific restriction - Prohibit, or otherwise manage excavation, Media specific restriction - prohibit use of groundwater for consumption or domestic purposes, Media specific restriction - restrict drinking water well installation, Media specific restriction - restrict withdrawal or use of groundwater for agricultural/irrigation purposes, Restrict land use - Mitigation area(s) protection, Restrict land use - No daycare/hospital/school use, Restrict land use - No residential use

Medical History of Camp Lejeune Personnel

Camp Lejeune's hazardous-to-health site conditions are a case in point. It took decades for federal authorities to acknowledge that ground and water pollutants will trigger stillbirths, miscarriages, and result in an array of cancers.

Additional References Re Sulfur-Emitting Wallboard

More Companies Knew About Tainted Drywall but Stayed Quiet—and Kept Selling It— ProPublica/Sarasota Herald-Tribune — June 2010

Expert: Builder’s New Guidelines for Chinese Drywall “Feel Like a Whitewash” ProPublica— March 2011

Five Things You Can Do With Our Interactive Feature on Tainted Drywall—ProPublica—December 2010

Habitat for Humanity Buys Back House Built with Chinese Drywall—ProPublica—March 2011

National Class Action Lawsuit Filed Against Drywall Companies for Manufacturing Sulfur Emitting Drywall—Attorney Ervin A. Gonzalez

Chinese Drywall Plaintiffs Awarded $2.6M—CBS NEWS—April 2010

Executive Summary of April 2, 2010 Release Consumer Product Safety Commission

Sulfur-Emitting Chinese Drywall Blamed for Sickening Residents in American Homes Fox News —April 2009

Florida Homeowner Brenda Brincku’s Senate Testimony June 17, 2009

National Gypsum Press Release— January 2010

Drywall supplier at Bragg faces suit Fayetteville Observer December 2010

Indoor Air Pollutants Affecting Child Health— 2000

Jackson County, NC Real Estate: 2006 Landslide Hazard Situation Report

2011-02-26T17:59:00.000-08:00

Jackson County, NC landslide photo 2010—
SouthWings

2005 Western North Carolina Landslide Hazard Mapping Program

Federal authorities notified twenty-seven mountain county governments in 1998 that the region was geologically hazardous and that mountain slope development would likely precipitate landslides and slope failures. Planning boards did not heed these advisories and as a consequence, homes and private subdivision roads across the region have been built on critical slopes and costly to control soils.

September 2004 landslide events, which included fatalities and wide-spread property loss, prompted federal intervention. In February 2005, the North Carolina General Assembly agreed to formally initiate the Western North Carolina Landslide Hazard Mapping Program.

Counties covered by the Hurricane Recovery Act: Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Haywood, Henderson, Jackson, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, Watauga, and Yancey.

The North Carolina Geological Survey has published landslide/soil hazard maps for Macon '06, Watauga '08 and Buncombe '09. Geologic Information Systems show that significant portions of completed or proposed steep slope building sites in these three counties are unstable to moderately stable.

In May 2010, the North Carolina Real Estate Commission advised Realtors that landslide/soil hazard maps, like flood zone maps, are material to purchasers.

Jackson County, NC Landslide Hazard Maps Not Available

Since there is no scheduled release date for Jackson County, NC landslide hazard maps, interested parties will have to rely on other sources when making decisions. As shown on the following maps, a significant number of Jackson County subdivisions have been sited on unstable slopes.

Jackson County, NC Land Development Plan—2006

Jackson County. NC Slope Evaluation Map
Green indicates 30-50% slopes; purple 50-100%

Jackson County, NC Subdivision Map

Following years of free rein mountain slope residential development, the Jackson County planning board determined that requests for subdivision permits should be carefully considered due to the region's unstable land conditions.

For clarification, please refer to page 23 of the Jackson County, NC Land Development Plan:

As growth and development occur at an increasing rate in the County, the natural and manmade limitations to development become more apparent. Topography—primarily steep slopes—has been one of the more significant limitations to development. Map 1 [See Appendix] categorizes the development potential of land in the county based upon its slope, with land having a slope in excess of 30 percent considered to have severe limitations to development and lands with a slope in excess of 40 percent considered not suitable for development. Given these parameters, almost half the land in the county either has severe limitations on development or is considered not suitable for development.

Jackson County Real Estate: Subdivision Permits 2000–2005

Jackson County did not require feasibility studies for these listed subdivisions. Developers were left to their own best judgment on where to place lots and build Property Owners' Association roads.

Subdivision Name/Number of Lots

Trillium/550
Chinquapin/200
Mountain Top/325
Bear Lake/675
Balsam Mountain Preserve/354
Lonesome Valley/200
Pinchot/46
The Divide (Bald Rock)/67
Water Dance/94
Phase 1 River Rock/40
Phase 2 River Rock/200
Phase 3 River Rock/1760
Smoke Rise/100
Bear Pen/95
Black Bear Falls/99
Black Rock/32
Dills Cove/70
Bridge Creek/80
Garnet Ridge/100
Mountain River of Cullowhee/31
Cedar Hill/150
Stone Creek Estates/38
Beachwood/76
Whiteside Cliffs/30
Bakers Creek Preserve/ 42

Total Lots 5454

Jackson County, NC Real Estate: Conditional Sales Contracts

When purchasing steep slope home sites (defined as land on or above a 15% grade), experts recommend stability evaluations as a condition of contract. These risk assessments are crucial: landslide insurance is not obtainable.

Jackson County, NC Airport Landslide Litigation Report: County Found “Contributorily Negligent”

2011-02-25T19:52:00.000-08:00

Jackson County, NC Airport Landslide Photos

Jackson County, NC airport landslide photo October 2008

Jackson County, NC airport landslide photo 2010—
SouthWings

“What was determined was the airport proper is stable, but the problem was it could not handle a major rain event properly. It simply cascaded down the mountain and affected local property owners,” Ken Westmoreland, County Commissioner "An unstable past" —Smokey Mountain News, November 25, 2009

Jackson County is one of nineteen Western North Carolina counties designated landslide-hazardous by the General Assembly.

North Carolina Geological Survey Report re August 22, 2005 Jackson County Airport Landslide

The Jackson County Airport (1976) was built on top of Berry Mountain using cost expedient cut and fill material. As a result, portions of the airport site began to move and threaten downslope property owners eight months after completion. Construction-triggered land faults (scarps) have been responsible for numerous slope failures including the 500' loss of runway (1987) and taxiway damage (1994) .

Jackson County, NC Legal Issues

The following article details the cost of building on unstable ground.

The Sylva Herald— August 16, 2007

Local airport is once again at center of court battle
Lynn Hotaling

Controversial since its mid-1970s construction, the Jackson County Airport is once again at the center of a lawsuit.

The latest litigation, filed last November by adjacent landowners R.L. Ammons and Dewayne Pruett, contends slope failure at the airport that sits atop Berry Ridge near Cullowhee is threatening their homes and property. Those suits name as defendants Jackson County and the Jackson County Airport Authority.

The complaints hinge on a landslide that occurred Aug. 22, 2005, when an isolated storm dumped massive rainfall on the Little Savannah watershed sending large amounts of mud onto the Ammons property. The same rain event triggered movement at an earlier slide on the Pruett property.

N.C. Department of Transportation District Engineer Jonathan Woodard, left, and Jackson County Airport Authority member Jim Rowell take an up-close look in August 2005 at a slide triggered by an isolated storm that is thought to have dumped as much as 5 inches of rain on the Little Savannah watershed in a single hour. The slide, termed at the time a “debris flow” by N.C. Department of Environment and Natural Resources geologist Rick Wooten, left a swath of mud down the mountainside, damaging the driveway to homes of R.L. Ammons and Brian Ammons, located off Ben Cook Road. That slide also triggered November 2006 lawsuits against Jackson County and the Airport Authority filed by R.L. Ammons and another nearby landowner, Dewayne Pruett. A motion with regard to discovery in that suit is scheduled to be heard Monday, Aug. 20, in Haywood County
Superior Court. – Herald photo by Nick Breedlove

The lawsuits, filed on behalf of Ammons and Pruett by Sylva attorney Eric Ridenour, contend that county officials and the Authority share responsibility for addressing these concerns and ask for fair market value for their property, damages and interest.

Jackson County’s answer to the suit maintains the county is not liable because officials deeded the airport to the JCAA in 1997 when they created the Authority.

That response was drafted and filed by county attorney Paul Holt, but, at the request of the defendants, Holt no longer represents the county in the matter.

“They kicked me out,” Holt said. “My firm once represented the Ammons, and they said it was a conflict of interest.”

Hendersonville attorney Sharon Alexander, who did not return The Herald’s phone calls, is representing Jackson County in Holt’s stead.

The Airport Authority, which initially approached county officials about mounting a common defense, is represented by Asheville attorney Doug Wilson, who also did not return the newspaper’s calls.

“The county is not joining forces with us to fight the lawsuit,” said Authority Chairman Greg Hall.

Based on the answer Wilson filed on behalf of the Airport Authority and discussions at JCAA meetings, the Authority maintains the slide was due to an “Act of God” over which the Authority has no control.

According to county Manager Ken Westmoreland, the county is seeking to be removed as a defendant.

“The Airport Authority has title to the airport,” he said. “The only direct relationship the county has is to appoint members. There’s no longer any substantive connection.

“(The defendants) are arguing that the Airport Authority is the alter ego of the commissioners – that it’s a de facto extension of the board of commissioners, and that’s not true,” Westmoreland said.

According to Ridenour, that argument is incorrect. In court documents on file at the Jackson County Clerk of Court’s Office, he contends that the county was aware of “impending slope failure” and its resulting liability when commissioners created the Airport Authority. Ridenour also alleges the county had no intent to give up control over the airport; as evidence, he points to actions taken by the county in 2005 to remove then-Chairman Tom McClure from the Authority. A suit filed by McClure and two other JCAA members ended with a judgment against the county and a ruling that commissioners had violated North Carolina’s Open Meetings Law. Ridenour also references commissioners’ actions during 2005 and 2006 to get legislation through the General Assembly to change the way JCAA members are appointed and to secure an enabling act that would allow the creation of a regional airport authority and the dissolution of the existing county Airport Authority.

Westmoreland countered that those actions, only indicate commissioners were seeking a legislative arrangement and asking someone who has the authority to change statutes to do so.

In the lawsuit, Ridenour contends that a reversionary clause, which returns Airport property to the county if it ceases to be used as an airport, in the legislation that created the Airport Authority means the county should remain a party to the suit.

Westmoreland, on the other hand, maintains a reversionary clause carries no current responsibility or obligation.

The first courtroom skirmish in the current lawsuit, which appears to be the 10th legal action to revolve around slope failure in the 30-year-old airstrip’s history, is set for Monday, Aug. 20, in Haywood County Superior Court.

At issue that day will be Ridenour’s February request to compel the county to provide documents he sought.

Holt filed a motion in April asking for a protective order that would relieve the county from having to produce documents dating back three decades that related to details of airport construction. To do so would impose a “great financial and time burden” on the county, Holt wrote in April, and Alexander apparently will pursue a similar argument next week.

Ridenour maintains that many of the documents he seeks should be available pursuant to North Carolina’s Public Records Act and that many others are part of court records from previous lawsuits. In particular Ridenour references a 1979 suit in which Jackson County sued the contractor (Burton) who built the airport and the engineering firm (Barbot) that supervised its construction. A copy of that suit, located in The Herald’s files, indicates that the county alleged negligence on the part of both Burton and Barbot.

In that suit, the plaintiff, Jackson County, which was represented at the time by now-retired attorney Ben Bridgers and Holt, alleges that since construction of the airport began ... “the drainage has not been adequate or proper” and “the plaintiff has encountered numerous serious problems and defects ... in that water and other materials have drained and washed from the airport onto the property of adjoining
landowners damaging the property of said land owners” and “one large landfill area has failed and eroded, sliding down the slope and removing the lateral support of the airport runway.”

Ridenour contends that many of the documents he seeks were part of that court proceeding, which was moved to federal court in Asheville, and that if he can’t obtain the records from the county, his clients will have to pay 50 cents per page to retrieve them from the federal archives in Atlanta.

When contacted by The Herald as to the outcome of that court battle, Bridgers said earlier this week that the contractor was not found to be negligent because testimony showed he didn’t do anything he was not told to do.

The engineering firm, on the other hand, was found negligent but did not pay any damages because the county was found to be “contributorily negligent” in that county officials approved improper construction methods, Bridgers said.

A local contractor who was hired by the Airport Authority to clean out drainage ditches and repair some of the damage to the Ammons property after the 2005 landslide told The Herald then that airport construction was to blame for both the Ammons and Pruett slides.

“Building the airport caused the runoff problems,” Paul Lewis said. “I was raised in that area, and there never were these kind of problems before they built it.”

According to Lewis, no effort was made to clear the site of vegetation before airport construction began.

“They just went up there with big bulldozers and started in,” he said. “There was no pipe, and no drainage.”

Pruett said this week that geologists with the N.C. Department of Environment and Natural Resources continue to monitor the slide on his property and have noticed additional movement since 2005. (See related story on page 3A.)

“I truthfully don’t want to move, but I don’t know if they could afford to fix (the airport),” he said. “I’m not asking for a phenomenal amount – just what the property is worth.”

According to Pruett, the property has been handed down through his wife’s family for more than 100 years.

With regard to the current situation, he holds the county responsible.

“I think the county is ultimately responsible,” he said. “They used taxpayer money and built the airport. The Airport Authority owns the airport, but the county appoints them.

“I’m not against the airport,” Pruett said. “I don’t care if they have it or not. I just want my problem fixed.”

Ammons told The Herald the house he lives in now was his father’s and had to be moved after the site it was on was condemned in the wake of the 1977 slide.

“(The slide) came off the other end of the rock fill, and there wasn’t a tree left,” he said. Mud also came in on top of his brother Jimmy’s house, he said.

Ammons expressed his frustration with ongoing problems relating to the airport.

“The county just won’t do anything. This has been going on for 30 years now,” Ammons said.

Giving the property to the Authority doesn’t relieve the county of liability, according to Ammons.

“They’re the ones that started it,” he said. “They’re the ones that are going to have to end it.”

The airport lost 500 feet of runway to that slide, and Jackson County had to buy out several adjacent land owners, including that of several members of the Ammons family and Lenoir Stack, after their property was condemned.

Other litigation through the years has included a 1975 suit against the county by a group called Citizens Against the Airport, and a 1978 action brought against Jackson County by the N.C. Department of Natural Resources, which included the assertion that “the absence of a revised drainage system on the subject property represents an immediate pressing threat to the health, safety and welfare of the citizens of Jackson County and may result in irreparable injury to the state of North Carolina.”

Most of those previous judgments against the county centered around the issue of inverse condemnation, and that’s also the first cause of action Ridenour lists in the current lawsuit, which also charges the county with negligence, trespass and misuse of governmental authority.

In their answers to the lawsuit, lawyers for the county and Airport Authority deny those allegations and their list of defenses include governmental immunity. They also say the statute of limitations bars the plaintiffs from seeking relief 30 years after the airport was built.

Ridenour counters that the 2005 slide reopened the issue and that the statute of limitations no longer applies. As to inverse condemnation, he maintains that action by the county when the airport was constructed caused the recent damage to his clients’ property.

“It was unintentional, but they took my clients’ property and rendered it both unusable and dangerous,” Ridenour said. “Now they refuse to pay for it, forcing my clients to sue.”

The plaintiffs’ lawyer also said he doesn’t think governmental immunity applies in cases of eminent domain or condemnation.

“The Constitution is clear that you can’t have governmental taking without compensation,” he said.

In the suit, Ridenour also contends that the county misused its powers by creating the Airport Authority when county officials “were well aware of the impending slope failures and liability that would result.”

For one county official, the current lawsuit is deja vu all over again.

Commissioner Tom Massie, who was sworn in for his first term as an elected official last December, was county planner for a decade, from 1984 until 1994. Though that was a period without legal action with regard to the airport, the facility was a frequent topic of discussion.

“(The county) made some repairs while I was there to improve drainage,” Massie said Tuesday. “I had assumed that between the county and the Airport Authority that they had continued to maintain the airport – when I left it was in good shape.

“I was sworn in on a Monday and served with papers on Tuesday,” Massie said. “I was as surprised as anybody when I found out I was getting sued over the airport.”

Western North Carolina Realtors Violate Hazardous-Land Disclosure Requirement

2011-02-20T18:50:00.000-08:00

Western North Carolina Mountain Real Estate

Federal and state land-use experts determined years ago that Western North Carolina’s mountain soils are unstable.

County soil surveys state that the region’s steep slope soils (on or above a 15% grade) are “ill-suited” for residential development because they require “major increase in construction effort, special design, or intensive maintenance.”

Water-reactive soils are not the only natural hazard affecting slope side roads and home sites. In 1998 federal authorities advised planning boards in twenty-seven mountain counties that landslides were highly expected occurrences.

2005 Western North Carolina Landslide Hazard Mapping Program

September 2004 multi-county landslide events prompted Federal Emergency Management Agency officials to force the state to commence hazard mapping for the following Western North Carolina counties: Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Haywood, Henderson, Jackson, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, Watauga, and Yancey.

Of these nineteen elevated-risk counties, the North Carolina Geological Survey has released landslide/soil hazard maps for: Macon (‘06), Watauga ('08) and Buncombe ('09).

North Carolina Real Estate Commission

Published hazardous-land data is a definitive material fact yet Realtors say they were surprised to learn last year that these real property risks must in included in sales contracts and on property listings.

The North Carolina Real Estate Commission states that Realty firms and associated agents must provide sellers with all material facts that could influence decisions to purchase. It is not known whether Realtors have a fiduciary responsibility to advise their clients that landslide insurance is not purchasable.

The following reprinted Macon County News article reveals Realtors’ hesitation to disclose unstable land conditions.

Realtors, developers grapple with the implications of disclosure req's for landslide hazard maps

Macon County News— June 17, 2010— Christopher Carpenter

At a meeting of the Franklin Board of Realtors in May, many area realtors learned for the first time that the information on the Macon County Landslide Hazard Maps developed by the North Carolina Geological Survey represents a material fact and as such falls under disclosure requirements when listing or selling property in the county.

The hazard maps, completed in 2006, have been available to realtors and the public since then. Still, several at a May 20 meeting were surprised to learn that attorneys at the North Carolina Real Estate Commission have deemed the information a material fact.

Since the announcement of the requirements, concern has risen among realtors, developers and property owners about the potential negative impacts on real estate transactions in the county. There is concern that buyers will be frightened off by the disclosures or that realtors will hesitate to recommend certain properties. More generally, there seems to be confusion over exactly what and how to disclose the information.

"I think there needs to be more education on exactly what the realtors need to be doing about this whole situation," said Evelyn Owens. "The fact is, we have those slide maps-it is a material fact-we, by law, have to disclose that to potential buyers when they are looking at property or houses that just happen to be in that hazard area."

The problem, said Owens, a member of the Board of Realtors and owner/broker of Keller Williams in Franklin, is that realtors in Macon County are still figuring out what the maps are telling them. "No one has had any education on how to go about explaining it," she said.

Jamie Stamey, a realtor with Unique Properties of Franklin, echoed Owens' opinion, saying, "There needs to be more education and better understanding of what the maps are showing and how to explain them."

The current landslide hazard maps "are pretty vague in terms of what we're showing," added Stamey. "You can tell approximate areas, but it is hard to identify certain properties within those areas."

"North Carolina has deemed it a material fact if it's on a steep slope, but we need a better way to determine exactly. For instance, if you've got a 40 acre tract of land, the top 20 acres could be in that steep slope hazard [area] and the bottom 20 is not," explained Stamey.

John Becker, with Exit Smokey Mountain Realty in Franklin, feels that the discussion about the maps is premature. "They're telling us that this is a material fact now, but we don't know how to define what the material fact is because we don't know exactly what these things entail," he said.

"Everything up to this point is conjecture," said Becker, who is also a member of the planning board subcommittee in the process of developing a safe slope ordinance for the county. "All the maps, all the different information that's out there is scientifically sound," but the interpretation and the application of those things have yet to be determined, Becker said.

In addition to a lack of knowledge about the landslide hazard map, the state has yet to produce any forms or publish protocol to guide realtors in disclosing the information. In contrast, instruments for flood hazards and property within federally designated flood plains have been available for years.

"We do not have any paperwork," Owens complained. "For every other disclosure that we have, we have paperwork."

"We were the first county to get the maps," she continued, but "the attorneys on the Real Estate Commission, they haven't provided us with any documentation to disclose that."

History of the Landslide Hazard Map

Downslope Hazard Map of Macon CountyThe creation of the landslide hazard maps was authorized by the Hurricane Recovery Act of 2005, established by the state as a result of the damage and destruction caused by landslides after hurricanes Francis and Ivan in 2004. A landslide at Peeks Creek in Macon County destroyed homes and left five people dead.

"The Peeks Creek debris flow was, as far as we know, the most serious and deadly landslide event in those parts," said Rick Wooten. Wooten, a geologist from the North Carolina Geological Survey (NCGS), helped develop the map for Macon County. He says the Peeks Creek slide was the key event that brought the issue to people's attention.

Prior to the slide, the NCGS had already been involved in some investigations in the region, identifying a number of specific historical landslide events, but, says Wooten, it had not planned the scope of mapping approved later by the legislature.

The legislature mandated the mapping of 19 counties that had been declared disaster areas after the hurricanes of 2004. At this point, three counties in Western North Carolina have had landslide hazard maps completed by NCGS. Macon County was the first, Watauga second, and Buncombe third. Wooten reports that the mapping project for Henderson County has been mostly completed and that Jackson County will be the next project.

The process takes time. "We combine a lot of information ... and use it to give us the best picture we can get of potential landslide hazard areas," said Wooten.

To understand how the landscape is changing over time, the project for Macon County utilized aerial photography from 1954, 1993, and 1998 and satellite imagery from 2004. Also used were high resolution topographical maps-called LiDAR maps for Light Detecting and Ranging-which had been developed for the flood plain mapping program. These maps provided detailed information about the ground surface, particularly slope, which is a key component of the analysis.

"That is the first thing we do to pinpoint areas to visit in the field," Wooten explained. "We then go to specific locations-targeted areas-where we want to verify what we've found in the imagery and on the LiDAR maps."

"It's a combination of remote sensing and boots on the ground, with a fairly sophisticated computer analysis from a program designed specifically to analyze broad areas for slope stability," Wooten said.

While he says the mapping process is rigorous, Wooten is quick to add that the maps are to be used simply as a planning tool.

"It doesn't substitute for site-specific, on the ground investigation by a qualified geologist or engineer to asses the stability of a specific site," he said. "That's very dependent on the conditions at that site. And even at the site scale, a scale of a quarter acre parcel for instance, conditions can vary considerably even in an area that small. Our view is that these maps show areas where that level of investigations is warranted or even recommended before development."

The NCGS determined that 26 percent of Macon County lies within high or moderate hazard areas; 11 percent is designated high hazard area, but those are mostly on Forest Service lands which is also where most landslide deposits have been documented.

Will disclosure impact investment in the county?

Several realtors and developers have expressed concerns over the impact that disclosure requirements may have on investment and land values in the county. Understandably, it is a sensitive topic for realtors that see a need to balance issues of public safety and economic vitality but do not want to be seen as overly concerned with their bottom lines.

"The economy has affected all of us," said Owens, who is also a member of the Macon County Planning Board. Compliance with material fact disclosure requirements is not optional, said Owens, but she is concerned that a negative impact on real estate will mean a negative impact on the whole economy of the county. Real estate is "the industry for Franklin," she explained. Buyers of second homes in the county also "spend money that supports the local businesses, whether it's carpet layers or people working in restaurants or selling tires or whatever."

"I do not know the solution, and I think there needs to be a lot of education," Owens said, "but a lot of people are really concerned about how this is affecting their livelihood."

While Stamey also sees the benefit of educating developers and buyers about the hazards of building in the mountains, he feels the new requirements are being instituted at a poor time.

"It's a tough time to institute something like this," he said. "They did this at a time when we're in our most depressed situation." Stamey added that the construction industry has been hit particularly hard.

Stamey says he sees very little new development happening in the county in the near future. "We probably have a ten or 20-year supply of vacant lots sitting on the market right now," he said. "Banks are not wanting to finance land, so land sales are by far the worst we've ever seen."

But Stamey believes that home sales will also be affected, particularly more expensive homes with mountain views.

Another local realtor, who asked to remain anonymous, said that his business had already been affected by the disclosure requirements. The realtor says he personally lost a recent sale because the house he was selling was in a downslope landslide hazard area. He is concerned that the maps may exaggerate the danger for potential buyers.

"I understand that safety is their number one issue with [the map]," he said. "I just feel like it's a little overboard."

At the same, as other realtors have said, he feels authorities have done a poor job in educating the public on the maps and how to use them.

"How is it going to affect me?" he asked. "Of course, it's going to affect my pocket, but at the end of the day I'm not so worried about it. I think the key to it as a realtor is knowing how to present it to your clients and help them understand it."

Local businessman and property developer Bill Vernon is also concerned that the map exaggerates the real danger of landslides in the county and will have a chilling effect on real estate. He is also afraid that it will be very difficult to convince buyers that a property is safe if it falls within a hazard area on the map.

"Even though landslides like Peeks Creek may only occur every few thousand years or so, you have to live with the map designation they assigned you today," he said.

Not everyone is worried about the map, however.

"Absolutely not," said Becker when asked if he felt the existence of the maps would have a negative impact on his business. "My opinion is that when you look at those maps and see what they're showing, all you have to do is look at the history of the county and say, you know what, this thing has been here for 10,000 years, and it's been the same."

"If you look at those maps and see the red coming down, you say to your clients, 'I'm not saying that you can't build there, but it would be prudent to have an engineer take a look at it to see what you can do to make sure you're on stable ground.'"

Becker is confident in the value of the information provided on the maps, but he agrees that it will take time to educate realtors and the public on how to interpret it. The objective is public safety, he says.

"That's what this is all about. ... We want to sell properties, we just want to do it and make sure that everyone is safe."

When asked if he thought the landslide hazard map exaggerated the dangers of landslides, Wooten admitted that it is possible. Still, he believes the benefits of the project outweigh the drawbacks.

"Is there the potential that it maybe raises more concerns than are warranted? There may be in some cases," he said. "But ... it works both ways. That's why we emphasize that this is a planning tool so that resources can be applied in the areas where they are most probably needed."

Wooten says the NCGS is a neutral party that produced the maps so that people can make informed decisions about development on slopes, whether they be realtors, private sector geotechnical firms or members of the general public.

Likewise, Wooten stressed that the maps don't designate areas that cannot be developed.

"It doesn't mean that you can't build there, but it just means that, based on the information that's available, it makes sense to site, to design and build carefully in this area," he said. A project in a high hazard zone could get a stable location simply by moving the house pad or the road over 15 or 20 feet, he said.

Wooten recommends that builders always be cognizant of what is underneath them. "You want to know what you are building on. The leaning tower of Pisa is built on land as flat as a pancake."

To criticism that the map is too general, Wooten argues that this is one of its benefits.

"No, it is not site specific, but on the other hand, what it does give you is the big picture. It tells you what is above your site that could impact where you develop and how you develop. It also tells you what is below you so that if things don't go as planned and you have problems, you might be affecting those areas. So it gives the design professional the big picture, which goes beyond what the site specific investigations do."

Be that as it may, many realtors are still grappling with what the map means in terms of their businesses. At the same time, progress is being made on a safe slope development ordinance, which may also take some adjustment within the development and real estate industries.

"We want everybody to use their land the way they want," said Becker about work on the ordinance. Becker says the landslide hazard map project is similar to the previous project to map the flood zones in the state.

"We have certain types of technology now that we didn't have ten, 20 years ago," he explained. "There's property now that is right in the flood flow that we didn't know before. That kind of property is in danger."

Owens agrees that the issue of landslides is important and that safety is the priority. "I just hope that we can all work through this and have a good plan in the end that's not going to affect anybody's livelihood in a negative way."