Is the City of Portland Responsible for the West Hills Landslide?

In the early morning hours on October 8, 2008, an unimaginable event transformed the landscape of a well-established Portland West Hills neighborhood. When the slope collapsed underneath the home on 6438 S. W. Burlingame Place, it became a swift-moving mass destroying two homes and significantly damaging several others. The companies providing insurance for the injured parties have so far declined coverage for the landslide property losses.

Portland officials have ruled out rain and leaking city water and sewer lines as possible causes of the slide. The Oregonian reported on November 21, 2008 that the primary suspect appears to be a sprinkler system that was installed on the back yard slope where the landslide occurred. Portland Commissioner, Randy Leonard, told the press “What has changed to cause the soil conditions to become so malleable that what had held for 75 years broke loose? What’s different is the installation of an irrigation system combined with an unusually high use of water.”

Records indicate that the property owners, Kathei and David Hendrickson, received a city permit to install the system in March 2005. The City of Portland Natural Resources information website shows that the Burlingame property was located on a slope greater than 25% and subject to landslides and soil erosion.

Bill Burns, an engineering geologist for the state, said he believed the slide was likely caused by several factors: water in the soil, unstable ground and the steep slope the house was erected upon.

The Portland metropolitan area experienced disastrous landslides in February 1996. Geologists found that the West Hills Soil Province suffered hundreds of slope failures during this wet-winter period. Soil sediments, which cover the area, are stable construction sites when dry but are dangerous when saturated.

The Hendricksons have lost their home and they are facing numerous long-term lawsuits. No one has yet determined the trigger for the landslide, whether manmade or natural. The city has denied all responsibility for the slope failure and resultant property damage. It should be noted that if the sprinkler system is found to be the cause of the landslide the city granted the permit.

Questions Concerning The Cliffs at High Carolina Property Report

The Cliffs at High Carolina Engineering Report

Cliffs Communities, Inc., developer of The Cliffs at High Carolina, disclosed in their October 21, 2008 subdivision Property Report that all of the ninety-nine (99) single-family building lots offered for sale on November 8, 2008 were evaluated by S&ME, Inc., a Raleigh-based engineering firm, for the possible presence of colluvium materials.

The High Carolina Property Report Hazards section states that:

The term “colluvium” is used to describe a condition where a lot possesses loose rock and soils, evidencing their deposit in the past due to erosion and movement from an uphill position, and having a potential for lateral movement both from man-made development and construction activities, as well as from natural conditions such as might be caused by heavy rains. In its written evaluation to the developer dated August 15, 2008, S&ME reported that it had inspected each lot in this Property Report and observed that in some lots there existed some potentially unstable areas in steep portions thereof or at their outer boundaries, but well outside of the identified building area. Some lots were identified as having shallow draws or swales, also well outside a building area, that could potentially have a presence of some colluvium.

With respect to all lots, however, S&ME reported that it was its opinion that “residential structures can be suitably supported at the lots,” and found that the identified building area for each lot was suitable as a home site.

Colluvial Soils Cited as Contributing Factor in Mountain Air Resort Landslide

It is not known whether S&ME, Inc. advised The Cliffs Communities, Inc. that they were defendants in the Hemlock Bluff Villas Condominium Association, Inc. vs. Mountain Air Development Corporation et al Complaint. (06-CVS-51) According to court documents S&ME, Inc. was engaged by the Mountain Air Development Corporation to provide geotechnical engineering services and site preparation, construction planning, and design services for Building C of Hemlock Bluff and an abutting golf course hole in Mountain Air Resort. Resolution of the lawsuit is unknown as the dispute was settled out of court.

Nature of the Hemlock Bluff Condominium Association, Inc. Complaint

The Plaintiff alleged that:

Since completion of the Project, a landslide or shift in Hemlock’s supporting land mass occurred, resulting in substantial damage to Hemlock and requiring urgent and costly repairs. An inspection of the building and surrounding area resulted in the discovery of structural and safety defects. Upon information and belief, the problems or defects at Hemlock are a result of defective design and/or construction of Hemlock and/or the abutting golf course and the interaction between the two projects.

As a direct and proximate result of the numerous design and/or construction defects and problems discussed above, Hemlock has been severely damaged, including separating of the decks from the buildings, cracking in the 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 Plaintiff alleges that S&ME was negligent and/or grossly negligent in that it:

negligently relied on its experience with other projects in the Mountain Air development in preparing its report on Hemlock Buffs rather than conducting a proper geotechnical analysis of the specific site and abutting land, including making inadequate assumptions about subsurface conditions, adequacy of supporting land, appropriate depths and design bearing pressures and doing so without taking into account the plans for the abutting golf course area.

Building C of the Hemlock Bluff condominium cluster was not the only building affected by the slope failure. Two buildings in the adjacent Austin View Villas complex were also severely damaged. According to court documents in a related Complaint, Buildings C & D of the Villas “became-and remain-completely uninhabitable.” Property owners of these units filed a separate lawsuit (07 CVS 19) against Mountain Air Development Corporation ( MADC) et al. S&ME was not listed as a defendant in this legal action.

The Austin View Villas plaintiffs alleged that:

MADC, the Unit Builders, and the Golf Course Builders knew about the problems with and damages to the Hemlock Bluffs units before MADC and the Golf Course Builders began working on the portion of the Golf Course adjacent to and below the Units. In fact, upon information and belief, in August 2004 MADC hired Bunnell-Lammons Engineering, Inc. (“BLE”), a geotechnical company, to analyze and to recommend immediate remedial action with respect to the slope collapse below Hemlock Bluffs. In a letter dated August 20, 2004 BLE repeated its oral recommendations that “no further excavation be made at toe of the slope,” that “a buttress…of earthen fill approximately 20-25 feet in height and 30-40 feet in width [be] at and against the toe of the existing slope. This will serve to stabilize the toe against additional lateral movement,” and that “soil supporting the wall foundation on the downhill side of the [Hemlock Bluffs] condominium structure should be stabilized/underpinned.” Moreover, in a letter dated September 24, 2004 BLE stated that its initial determination as to the cause of the slope collapse was the combination of (1)the presence of five feet of colluvial soils at the site surface of Hemlock Bluffs and (2) the removal of the soils at the toe of the slope of the Golf Course below Hemlock Bluffs.

Colluvial soils are common geologic hazards in Western North Carolina and, as noted, can cause significant property losses.

The Cliffs at High Carolina Property Owners' Association

The Cliffs at High Carolina Property Report does not address the question of whether other construction sites in the 3,200 acre tract, such as roads, have been evaluated for the presence of colluvium. This is an important concern: the soon-to-be formed property owners' association will assume financial responsibility for all road maintenance and repairs.

Insurance Coverage for High Carolina Property Owners

The developer states that "The subdivision is not located within a flood plain or an area designated by any federal, state, or local agency as being prone to flooding. Insurance is available, but is not customarily required in connection with financing for improvements on lots."

Concerning other perils, the developer notes that the subdivision... "may contain localized areas subject to the natural hazard of landslides." This disclaimer is disingenuous: federal and state agencies have issued numerous reports finding that Western North Carolina mountain slopes are at high risk of landslides. The Property Report also neglects to warn prospective buyers that insurance is not available for this hazard. Homeowner policies nationwide will not cover earth movement damage regardless of the cause.

Interstate Land Sales Full Disclosure Act

The Cliffs at High Carolina sales are subject to federal oversight under the Interstate Land Sales Full Disclosure Act. The statue stipulates that each purchaser receive a standardized highly-detailed Property Report prior to signing a contract. By law the developer is required to disclose all material facts that could potentially affect the future value of the lots being offered for sale.

The Cliffs Communities, Inc. began acquiring Buncombe County land for High Carolina in 2004 and received approval for the development in June of 2006. During this period, September 2004, rain-triggered landslides devastated the mountain counties of Western North Carolina. In February 2005 the state authorized landslide hazard mapping for Buncombe County and 18 other at-risk counties.

Preliminary Buncombe County Landslide Studies show that major portions of the High Carolina tract are geologically hazardous. These maps were scheduled to be completed in the summer of 2007 but for unknown reasons they have been delayed.

The developer provides a generic list of possible financial risks for High Carolina purchasers but fails to disclose a material fact: publication of landslide hazard maps will diminish property values in the subdivision.

In all fairness to prospective buyers, Cliffs Communties, Inc. should revise their Property Report to inform their clients of the pending High Carolina landslide studies and the absence of insurance.

The High Carolina Property Report was dated October 21, 2008 and signed by Lucas T. Anthony, President of The Cliffs at High Carolina LLC. Mr. Anthony stated that the information contained in this Property Report is an accurate description of our subdivision and development plans.

Copies of the Cliffs at High Carolina Property Report are available through the United States Department of Housing and Urban Development.

The Cliffs at High Carolina Property Report

Red, orange and yellow color-coding show unstable to marginally unstable areas on this Buncombe County landslide susceptibility map.

History of The Cliffs at High Carolina

In June of 2006 The Cliffs Communities Inc. received approval from the Buncombe County Planning Department to begin construction in their 1,284 acre, 592-lot subdivision called The Cliffs at High Carolina. The project has grown considerably since the initial application. High Carolina, the largest land development in the county, now covers 3,200 acres. Approximately 10% of the tract will remain natural open space, the balance of the land is dedicated to the Tiger Woods golf course, 1,300 home sites, and various recreational facilities.

The Cliffs Communities, Inc. initiated sales for High Carolina lots on November 8, 2008. Jim Anthony, President and CEO of The Cliffs Communities, Inc. told the press that approximately 50 lots had been sold for a total of more than $40 million.

The individuals who purchased lots were given Property Reports as required by federal law under the Interstate Land Sales Full Disclosure Act.

The Risks of Buying Land in The Cliffs at High Carolina Subdivision

The High Carolina Property Report was dated October 21, 2008 and signed by Lucas T. Anthony, President of The Cliffs at High Carolina LLC. Mr. Anthony stated that the information contained in this Property Report is an accurate description of our subdivision and development plans. The document opens with the required statement “The Risks of Buying Land.” The following was extracted from the Report:

The future value of any land is uncertain and dependent upon many factors. DO NOT expect all land to increase in value.

Any subdivision will have an impact on the surrounding environment. Whether or not the impact is adverse and the degree of impact will depend on the location, size, planning, and the extent of the development. Subdivisions which adversely affect the environment may cause government agencies to impose restrictions on the use of the land. Changes in plant and animal life, air and water quality, and noise levels may affect your use and enjoyment of your lot and your ability to sell it.

What Wasn’t Stated in the Property Report

By happenstance or choice High Carolina land sales were held in November when air quality meets EPA standards. Mr. Anthony is aware that during warm weather months smog clouds visibility and impairs lung function. The situation is critical: 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.”

On August 4, 2008 the Asheville Citizen-Times reported that the North Carolina Department of Environment and Natural Resources had issued a public health air quality alert for mountain areas near Asheville. ( “Air quality unhealthy at high elevations” ) Pollution warnings are common during summer months when elevated temperatures trap the ozone-laden air over the mountain region. Air quality in Western North Carolina is not expected to improve in the near future.

The Cliffs at High Carolina Encumbrances, Mortgages, and Liens

The Property Report states that:

There are blanket encumbrances, mortgages or liens on some of the lots included in this offering. Those are: (1) a Deed of Trust by and between Longview Land Company, LLC ("Borrower"), Steve I. Goldstein ("Trustee") and Strauss Family Limited Partnership ("Lender"); (2) a Deed of Trust between The Cliffs at High Carolina, LLC ("Borrower") and Julie El Abiyad ("Trustee") and Capital Bank ("Lender") such Deeds of Trusts covering the lots as shown in the Listing of Lots on page 26 below.

The Cliffs at High Carolina Hazards

Developers are required to make known all hazards located in the subdivision. The High Carolina Property Report Hazards section reveals that:

The lots covered by this Property Report are located in Buncombe County, which is in an area geologists refer to as the Blue Ridge Geologic Province of North Carolina. As with all developments located in this Province, the terrain contains some moderate and steep slopes and may contain localized areas subject to the natural hazard of landslides. However, according to Buncombe County’s Hazard Mitigation Plan dated August 23, 2004, while the likelihood of an occurrence of a landslide is quite high, any such event would have a negligible impact on a small area of the County.

Clarification

Historic data was the determinate in accessing the impact of landslides in Buncombe County. Certainly after the catastrophic multi-county landslides of September 2004 Hazard Mitigation Planners would have found that landslides pose a significant threat to major portions of the county. Buncombe County, along with 18 other at-risk counties, are to be surveyed for these highly probable events.

The Cliffs at High Carolina Property Report Hazards section continues with the following:

In its development activities, the developer has followed the Hillside Development Standards Ordinance of Buncombe County in developing roads, infrastructure, and lots and the identifiable building sites thereon.

Buncombe County Hillside Development Standards Ordinance

County Commissioners enacted the Hillside Development Ordinance in March 2006. It should be noted that the High Carolina Property Report fails to mention that this ordinance has been highly criticized. In January 2007 the Buncombe County Environmental Advisory Board issued an admonishment to the Board of Commissioners regarding the absence of Ridge Top/Steep Slope Development regulation. The Board found that:

A clearly defined, comprehensive, countywide plan is needed to adequately manage RT/SS development in Buncombe County. The costs associated with a comprehensive strategy to protect these irreplaceable assets and to protect the health and safety of our citizens is minimal compared to the costs of doing nothing further. The present condition of allowing increasing waves of unregulated (or loosely regulated) haphazard growth to occur along our mountain ridges and steep slopes has become an untenable position.

For further information regarding geologic hazards please see "Questions Concerning The Cliffs at High Carolina Property Report."

The federally mandated Property Report is intended to warn prospective buyers of the financial risks of purchasing land in yet-to-be developed subdivisions. When projects, such as the Cliffs at High Carolina, are permitted in geologically hazardous unmapped areas, the risks are magnified.

Copies of The Cliffs at High Carolina Property Report are available through the United States Department of Housing and Urban Development.

Buncombe County Commissioners Facilitate Hazardous Land Development

Red, orange and yellow color-coding show unstable to marginally unstable areas on this Buncombe County landslide susceptibility map.

When Did They Know?

Buncombe County officials were notified in August 2004 that the mountain land under their jurisdiction was geologically hazardous. This was not the first hazard designation for the county.

In 1998 and again in 2004 the North Carolina Department of Emergency Management warned in their hazard rating reports that landslides were significant threats to lives and property in the following 21 western counties: Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Cherokee, Clay, Graham, Haywood, Henderson, Jackson, McDowell, Macon, Madison, Mitchell, Surry, Swain, Transylvania, Watauga, and Yancey.

In mid-September 2004 Buncombe County along with 14 other western counties were declared federal disaster areas after rain-induced landslides caused loss of life and massive property damage. ( The Federal Emergency Management Agency provided $72 million in aid to the state.)

In February 2005 the North Carolina General Assembly authorized landslide surveys for 19 at-risk counties. The Buncombe County "Is it safe to build here" hazard maps were scheduled to be completed by the summer of 2007 but, for unknown reasons, these studies have been delayed.

Landslide maps are intended to restrict or prohibit hazardous land development and they are a critical component of hazard mitigation planning. Simply stated hazard mitigation is defined as sustained actions that serve to protect the public and their property from recurring natural disasters.

Buncombe County Commissioners knew that the pending landslide hazard reports would focus attention on slope construction standards so they tightened the rules. In March 2006 the commissioners passed new regulations but held them in abeyance for three months. During this open-rule window the Cliffs Communities, Inc., along with other developers, submitted permits for mountain slope subdivisions. The Cliffs at High Carolina project now encompasses 3,200 acres and plans for 1,300 homes.

Excerpts from the following article detail the recent history of hazardous land development in Buncombe County.

“Builders rush to beat stricter slope rules” John Boyle, Asheville Citizen-Times, July 2006

If you had any doubt that developers desire mountainside locations for new homes, consider the recent rush of subdivision applications that recently arrived on Buncombe County planners’ desks.

“ Twenty-three subdivision applications came in before the deadline,” said David Young, a Buncombe County Commissioner. Asheville and Buncombe County have been discovered. Real estate in Florida has tanked, and we’re getting a lot of developers coming in from other places wanting to develop our mountains. It scares me to death.”

The new regulations apply to subdivisions with 11 or more lots, and they control density on slopes greater than 25 % and restrict the amount of cleared area on steep lots. County commissioners passed the regulations in March. They went into effect July 1, a deadline some developers wanted to beat because the new rules likely will increase development costs and prevent them from placing homes on some mountainsides.

Among the applicants that came in at the last minute was one for High Carolina, a 592-lot subdivision proposed for 1,284 acres in Swannanoa. The Cliffs Communities Inc., which is developing the high-end Cliffs at Walnut Cove subdivision in southern Buncombe, is the developer.

Cliffs President Jim Anthony acknowledged that his company submitted the application to beat the deadline….

A Flood Of Applications

Debbie Truempy, a planner with Buncombe County, said the Planning Department usually gets three to five subdivision applications for each of its twice-monthly meetings. The 23 applications in question , which comprise 1,713 lots, came in during the last week of June, although Truempy noted that only a dozen of them were new master plans. The remainder were amendments to existing plans.

Some of the subdivisions may never be built. The application and a plan essentially reserve the developer’s right to build the subdivision under pre-July rules.

Brad Galbraith, president of the Asheville Board of Realtors, said the numbers of applications doesn’t surprise him, given the popularity of the Asheville region for retirees and other new residents seeking a beautiful setting and high quality of life. Some developers are moving into the area, but Galbraith said he knows that several of the subdivisions whose applications came in under the deadline have been in the works for a long time.

But even those developers simply trying to beat the deadline make financial sense. Developers are businesspeople, he said, and have to consider the expense of a project, which will affect investors and buyers alike. To not take advantage of the previous rules that could affect the bottom line would be irresponsible.

“It’s not that anybody is trying to rape anything or exploit anything,” Galbraith said. “They’re just trying to make a good business decision and abide by the rules and regulations in place at the time. It’s not something where all the sudden we’re going to get a lot of skyscraper’s"....

Buncombe County's Hazard Mitigation Plan was finalized on August 23, 2004. The report stressed the need for the governing body to be able to "evaluate and strengthen" ordinances in view of ever-changing conditions, such as rapid development, technological change or a natural disaster.

In January 2007 the Buncombe County Environmental Advisory Board issued an admonishment to the Board of Commissioners regarding the absence of Ridge Top/Steep Slope Development regulation. The Board found that:

A clearly defined, comprehensive, countywide plan is needed to adequately manage RT/SSDevelopment in Buncombe County. The costs associated with a comprehensive strategy to protect these irreplaceable assets and to protect the health and safety of our citizens is minimal compared to the costs of doing nothing further. The present condition of allowing increasing waves of unregulated (or loosely regulated) haphazard growth to occur along our mountain ridges and steep slopes has become an untenable position.

It has been almost two years since the advisory board issued their report and yet the Commissioners have failed to enact a hazardous land ordinance.