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Landslide highlights, once again, need for new laws

Another landslide occurred a little over a week ago, this one leaving a home teetering on the edge of a precipice and in a position to potentially slide down the mountain when more rains come. And once again homeowners and regulators in the mountain region have few laws or protection to guide them in avoiding these natural disasters. We believe it is time for the state to enact a steep slope law barring construction in some dangerous sites and for the General Assembly to make landslide insurance available to homeowners in Western North Carolina.

As for the steep slope regulations, few counties have taken the initiative to enact strong ordinances. Opposition groups mount strong campaigns, and many county commissioners themselves think fewer regulations are best.

What lawmakers need to remember, however, is that is a public safety issue. Building on certain slopes is inherently dangerous. And while each homeowner or property buyer could choose to have an engineering study performed, it simply isn’t going to happen. A state law could mandate engineering reviews on certain grades and simply ban construction in some spots deemed too unstable. It really wouldn’t be that different from mandated beachfront setback requirements at the coast or laws barring construction in estuaries deemed environmentally sensitive. In some places it is just not a good idea to build anything.

The public safety argument needs to remain at the forefront of this issue as private property rights advocates jump into the fray. Rep. Ray Rapp, D-Mars Hill, introduced a steep slope proposal in 2007 that was not passed. It would limit building on slopes of 40 percent (a 22 percent grade) and rely on counties to do the inspections. This is a good start and hopefully will be reconsidered this year.

The insurance issue is more complicated but not impossible. Landslide maps for the entire state are supposed to be finished by 2014. These could be used to establish a safety rating system (kind of like the insurance industry uses to rate different kinds of cars) that would then let insurance companies use a sliding scale for setting rates.

As for homes already built, the mapping project and an engineering report could be used together to establish a safety rating, and there again this could be used to establish a rate.

A series of stories on landslides that was published recently by the Asheville Citizen-Times reported that only 40 buildings in the state have been destroyed by landslides in WNC since 1990. Compared to the beach homes ravaged by hurricanes or homes destroyed by fire, this is a relatively low number. The state developed an insurance pool for the coast to help insurance companies, and it seems only fair to demand that those companies doing business here insure mountain homes against landslide damage. Someone is just going to have to do some art twisting.

All that’s needed to get beyond the roadblocks on these issues is a stiff backbone by lawmakers who won’t buckle to the organized groups opposed to these measures. These kinds of laws would help manage growth, not stop it. And we all support reasonable measures that lead to responsible growth and promote public safety, right?

Another landslide jeopardizes Maggie Valley home

A Maggie Valley man alerted Haywood County officials this week of a landslide posing a risk to his home in Smoky Mountain Estates in Maggie Valley.

Marc Pruett, soil and erosion control director for Haywood County, visited the site of the slide on Walt Moody’s property on Tuesday. Pruett reported that “the failure comes up within about three feet of the back edge of the house. It’s not good.”

Moody estimated that the slopes above and below his house are between 45 and 50 degrees.

The cause of the slide has not been determined. Moody said that in recent weeks, rains have appeared to soften the ground around his property.

“I think this started with that rain in January,” Moody said. “I’ve never seen the ground that way. We’re leaving footprints and footprints are filling with water immediately. (It’s) like walking on a sponge.”

As of Tuesday afternoon, Moody had not decided whether he would take steps toward remediation of the slope.

Moody said recent landslides in the area have brought public attention to the challenges of building in the mountains.

“I believe we’re going to see a significant change in the way construction is managed in the mountains of Western North Carolina,” he said.

Landowners held accountable in wake of landslide

Property owners at the site of last month’s landslide in Maggie Valley are being tasked by county officials with the job of stabilizing the mountain in the wake of the slide.

The county has given the property owners until Feb. 21 to have a professional inspection conducted of the collapsed slope, the first deadline in a long remediation process.

Edward and Pamela McAloon, whose house sat on a nearly vertical slope, weren’t home when a 300-foot wall of mud slid off their property during heavy rains Jan. 7, destroying the home of their downhill neighbors Bruce and Lorraine Donin. The Donins, who were on the second and third floors of their house when the slide occurred, emerged badly shaken but uninjured.

Haywood County’s slope ordinance passed in 2006, too late to force the McAloons to hire an engineer and submit a slope stability plan when constructing their house on such steep terrain. But it does give the county power to force the McAloons to clean up the mess. In contrast, counties without such an ordinance lack the power to force any slope remediation by the property owner, meaning a failed slope may never be fixed or fixed at taxpayers’ expense.

Haywood’s ordinance gives the county’s engineering review board power to step in and require the owners of property “upon which a critical slope is located” to have a professional inspection performed to determine what it will take to fix the slope. On Jan. 22, the engineering review board gave the McAloons 30 days to do just that.

The board will also instate a timeline for repair of the slope, said County Engineer Mark Shumpert — another authority put in place by the slope ordinance.

The county can require the property owner “to repair the slope to adequately eliminate the hazard...within a time period as determined by the Engineering Review Board.”

The county has not yet set a timeline for the McAloons to repair their slope because of some issues that complicate the site, Shumpert said, such as access.

“Access to the site is going to be very difficult,” he said. “To cross that stream they may have to work with the Corps of Engineers and the Division of Water Quality, in order to obtain the permits to do that.”

Getting the proper permits to work around the stream that runs through the property will likely be the biggest obstacle to repairing the slope.

“It might take them six months to give them the permits they need,” Shumpert said. That’s why the county has opted not to set a timeline for remediation just yet.

Shumpert said he has not heard from the McAloons since the slide, and doesn’t know if they’ve hired a contractor to evaluate and start repairs.

But the attorney retained by the McAloons, Canton Lawyer Pat Smathers, said the couple has hired an engineer to take a look at the property. Smathers would not say whether his clients should be held financially responsible for the disaster, though he did say, “they regret what occurred.”

County inspection records indicate the McAloons were warned at least three times about the slope’s potential for failure.

The Donins, whose home was destroyed by the slide, have retained attorney David Wijewickrama of Waynesville, though they have not filed a lawsuit.

Prone to landslides, Haywood seeks priority in slope hazard mapping

The landslide last month that destroyed a home in Maggie Valley has spurred the Haywood County commissioners to ask the state for help in keeping county residents safe.

The board of commissioners discussed two separate requests for the state at its meeting on Monday (Feb. 2).

First, commissioners are asking the state to schedule Haywood County for landslide hazard mapping. Two counties — Macon and Watauga — have already been mapped through the state-funded program, which was put in place by the Hurricane Recovery Act of 2005. Henderson and Jackson counties are next on the list, and although the idea is to eventually map every county in WNC, no counties are planned after that.

Commissioners want Haywood next on the list.

“Haywood County has experienced numerous landslides in recent years, with two in the first month of 2009,” the commissioners’ resolution states.

The board is asking for Haywood to be given priority, requesting that the state, “consider scheduling Haywood County for mapping of landslide hazards at the state’s earliest opportunity.”

The second request commissioners are making to the state will likely be harder to fill. The board is asking the state to consider providing landslide insurance — something that is practically non-existent — to Western North Carolinians.

“The Board of Commissioners...recognizes the fact that there is currently no federal or state subsidized insurance for property lost to landslides and the potentially available commercial policies are cost prohibitive for the citizens of Western North Carolina,” the resolution states.

Commissioner Skeeter Curtis emphasized that the board is aware the request is expensive, but that it’s worth asking.

“It’s going to be very cost prohibitive, but I think we need to send this anyhow,” Curtis said.

Indeed, County Engineer Mark Shumpert said landslide insurance can only be obtained on the commercial broker market, and that he’s only heard of one company that offers it. Shumpert theorizes that landslide insurance is hard to get in part because landslides only happen in very specific regions, mostly the Appalachians and the Rockies.

People who have lost their homes to landslides have found they aren’t covered by their regular homeowners’ insurance, from the landslide in Maggie that turned a home into matchsticks to the more subtle slope movement that destabilized foundations of condos in the Hunters Crossing development, nonetheless rendering them unlivable.

Haywood commissioners unanimously approved both resolutions.

Despite landslide worries, state slope rules face uphill battle

A controversial bill to regulate development on steep slopes to prevent landslides will be reintroduced in the state legislature this year after dying in committee last time.

The bill was crafted by Rep. Ray Rapp, D-Mars Hill, who said it has a “much better chance” of passing this time because people are beginning to see the value of such laws. A recent landslide in Maggie Valley that destroyed a home brought to light once again the need for such regulations, Rapp added.

The bill doesn’t say that you can’t build on steep slopes, but instead requires oversight when doing so — namely by mandating that builders consult an engineer when building on slopes that exceed a threshold of 40 percent. The bill calls on mountain counties to adopt slope laws, providing minimum standards to go by.

However, Rep. Roger West, R-Marble, said he opposed the legislation last time and likely will again because he doesn’t think landowners should be restricted.

Such regulations make it impossible to develop land and build roads, West said. The recent landslide in Maggie Valley does not change his opinion either, saying that it’s an isolated case.

Rather than the state developing a “one-size fits all” bill for steep slope development, it should be left up to individual counties to develop the laws, said West.

Macon County, which he represents, does not have such a law, nor does Swain County. Haywood and Jackson do, but they are rarities in WNC.

The recent landslide in Maggie involved a home built prior to Haywood’s slope ordinance. While county officials flagged the slope as unstable and issued warnings to the property owners, the construction was grandfathered in and didn’t have to comply.

Had the slope law been triggered at the time of construction, however, the slide likely wouldn’t have occurred, county officials have said. Rapp’s bill is patterned after Haywood’s slope law.

Many of those opposed to the bill work in real estate or home construction, although Rapp said he has support from some in those groups this time. Rapp would not elaborate on how many people from those fields were backing him.

The goal is not to harm the real estate business or the home building industry, he said, but to provide a level of assurance to homebuyers that they are purchasing a safe piece of property.

Rep. Phil Haire, D-Sylva, co-sponsored the legislation last time, and said it needs to be looked at again.

The bill not only has to clear the House, but the Senate as well. That means finding a senator willing to shepherd it through the Senate. Sen. John Snow, D-Murphy, said he thinks such regulations are needed but could not say if he would support the bill because he has not seen it.

And Sen. Joe Sam Queen, D-Waynesville, said he would also give the bill serious consideration, adding that work into mapping dangerous slopes in the region needs to continue.

Searching for clarity after muddy disaster

It was around 1:30 a.m. on an exceptionally rainy Wednesday that Bruce and Lorraine Donin’s world came crashing down.

One minute, the senior couple from Florida was enjoying a peaceful night listening to the creek rush past their three-story home. The next, they were crawling their way through a twisting, tumbling nightmare, desperately trying to escape the mudslide that turned their house into a pile of rubble. The Donins ended up on their roof, which was sitting on the ground — miraculously unscathed, and badly shaken.

The 300-foot landslide that slammed into the Donin’s house in the Wild Acres subdivision in Maggie Valley originated from the property of their uphill neighbors, Edward and Pamela McAloon, also of Florida. The McAloon’s house was teetering on a whopping 83 percent slope — one that was deemed dangerous three different times before the house was built.

The mudslide that destroyed the Donin residence has sparked a renewed debate over building in the mountains and just whose to blame when something goes wrong.

In the Donin’s case, pinning a culprit isn’t easy. Though the county, private engineers and the McAloons themselves were all aware of the potential instability of the McAloon property, a lack of regulations in place at the time meant no one had to do anything about it.

And unless that changes, say slope ordinance advocates, there will likely be more destructive landslides in the future.

“As there’s an increase in the amount of development on steep and unstable slopes, I think we’ll see an increase in the number of similar incidents,” said Bill Eaker, environmental services manager for the Land of Sky Regional Council.


Who’s to blame?

County documents show the McAloons apparently ignored warnings that their property posed a potential risk for a landslide.

When the McAloons embarked on building a second-home in Wild Acres, they didn’t have much to work with. The remarkably steep lot was barely more than half an acre, leaving little room for shoehorning a house pad on the property.

They sought advice from private engineers at Alpha Environmental Sciences, who were the first to issue a warning about the stability of the site in July of 2005. The engineers visited the site specifically to evaluate the stability of its slopes. They identified two slopes that posed a risk. “This area will most likely continue to erode until the slope gives way and slides,” the engineers said of the first. Of the second — “due to the steep grade of the slope, there is potential for a slide.”

The same concerns were expressed when county officials inspected the property in October 2006 for erosion control compliance, a standard part of the construction process.

“We have concerns about the slope just past your home. It appears to be exhibiting signs of failure. Please have your plan designer, or another qualified person, have a look at it,” wrote erosion and sedimentation control inspector Tim Surrett.

But months later, there had been no move to remediate the unstable slopes. The county’s final erosion inspection in January of 2007 included a statement recommending that the owners seek professional help assessing the long-term stability of the slope.

While the county clearly had concerns over the hillside’s stability, Haywood’s slope ordinance had not yet been passed, and county officials couldn’t force the property owners to do anything.

“Our people were sitting there saying ... we think you’ve got an awfully steep slope, and that you need somebody to look at it,” recalls Mark Pruett, the county’s director of erosion and sediment control.

David Wijewickrama, a Waynesville lawyer retained by the Donins, says the McAloons are to blame for ignoring the repeated warnings.

“Even though they’d been warned, they had not followed the recommendations,” he said. “So what I see there are potential charges of negligence, such as negligent infliction of emotional distress. There are a variety of allegations that we can make against them.”

The McAloons could not be reached for comment.

In any case, out-of-staters from flatter terrain may not fully understand the risks of building in the mountains.

“It’s not something in their thinking that areas are prone to slides,” said N.C. Rep. Ray Rapp (D-Mars Hill), who has advocated for a state-wide steep slope regulation in the N.C. General Assembly.

Individuals unfamiliar with mountain terrain who are building here should get help from local professionals, Eaker suggests.

“We strongly encourage folks considering buying property or building in steep slope areas to retain the services of professionals that are here in this area, that are familiar with the mountain environment and how it works, and what the limiatations are,” he said.

But just who to pick can be daunting. Eaker suggests programs like Clear Water Contractors, where contractors who have undergone training in best building practices are listed on a Web site.

Gordon Small, a former employee of Haywood Waterways and advocate for smart building in the mountains, said there should be a public database that lists the citations that contractors have received.

“Not all builders and developers are equal,” he said. “I would like to see a public list on the Internet of citations issued. Over time, you’ll have a whole lot better people doing the work.”


County’s hands tied

If the McAloons were buildin on their property today, they would fall under Haywood County’s slope ordinance, which gives the county teeth to address slope stability concerns — teeth the county lacked just a couple years ago. Under Haywood’s ordinance, slopes over a 35 percent grade require an engineer to certify their stability.

“We have that slope ordinance in place now, which could very well have prevented the problem that recently happened,” said Pruett.

People have come forward since the adoption of the ordinance with requests to build on slopes as steep as that on the McAloon property, and now the county can make them comply with additional stability measures.

“We’ve not turned them down, but we’ve required them to submit a plan or do something else to modify the slope,” said Mark Shumpert, the county’s engineer. If a private engeineer signs off on the slope, the county generally agrees.

“For the most part, if the engineer signs off, we’re not going to argue with them — just make sure they submitted the information we need,” Shumpert said.

Shumpert said no slopes built on since the adoption of the ordinance have failed.

In theory, the hoops put in place by Haywood County’s slope ordinance might deter individuals from building homes on steep slopes. But if people are determined enough and have the cash, there’s still nothing to stop them.

“You can drive around parts of the county and realize there’s not really anywhere that can’t be built on — it comes down to financing,” said Shumpert. “A structural engineer can do you up a whopper of a home plan that costs more than the house itself.”

Though Haywood County’s slope ordinance still allows for steep slope development, it’s much more regulation than some counties have put in place. Neither Macon nor Swain counties have a slope ordinance.


The state’s role

A bill introduced by Rep. Rapp in the General Assembly would put in place a statewide steep slope ordinance modeled after Haywood’s. The bill, dubbed the Safe Artificial Slope Construction Act, stalled after meeting stiff opposition from the North Carolina Homebuilders Association and the North Carolina Realtors, and wasn’t brought up in the most recent General Assembly session. Rapp says the Maggie Valley landslide has reinforced the need for statewide regulations.

“What has happened with the Maggie Valley situation, is it just helps reinforce the need for this,” he said. “I don’t think we can be dismissive anymore of the dangers that are involved by continuing to ignore this issue.”

Rapp says a statewide ordinance would provide a method of protecting mountain slopes, especially in counties that lack any such regulation.

“I think we have a checkerboard pattern of ordinances up and down the ridges. Some communities have standards that go way beyond what’s called for, but other counties have absolutely nothing,” he said.

The bill would give counties with no regulations a chance to adopt an ordinance of their own, but if they didn’t the state would impose minimum criteria. Rapp said he had already been planning to reintroduce his bill prior to the landslide in Maggie Valley.

“I had been talking with different local groups to see what kind of support I might generate as well as some of the legislators who had been resistant to the original bill, to see what they found most objectionable and how we can make it a little more palatable,” he said.

Rapp says the two powerful lobbying forces — the homebuilders and Realtors — who opposed the bill took issue with the requirement that an engineer be hired if slopes exceeded a certain threshold. He argues that the additional cost is well worth it to prevent a total loss like that suffered by the Donins.

“These are very expensive homes being built on these slopes, by most standards, and if there is an additional cost of $1,200 or $1,400 that goes into having an engineer study and soil samples that may be required, that is well worth the lives and property that would be saved,” he said.

But Alan Best, president of the Haywood County Homebuilders Association, says his group has additional concerns.

“Why is the rest of the state mandating what we are regionally addressing? How does Raleigh or those other counties or other representatives understand what’s happening in WNC?” he said. “Is it something we need statewide when it’s something unique to Western North Carolina?”

However, many counties aren’t addressing it on their own, and the bill would force them to step up to the plate.

Another state initiative targeting landslides is the Landslide Hazard Mapping Program. The program, started after the 2004 hurricanes, aims to map potential landslize hazard zones as a tool for developers. But the program is moving at a snail’s pace because the funding is slow to materialize.

Rick Wooten, senior geologist with the North Carolina Geological Survey, said the landslide maps would have pinpointed the risk of the area where the Maggie Valley landslide occurred.

“Our maps would have picked up that spot as an area where debris flows could potentially go,” said Wooten.

The state program has recently secured more funding, which will allow it to continue mapping mountain counties. Next on the list is Jackson County, followed by Haywood County in 2010. Macon County has already been completed.


Slides without devastation

In the event of any landslide, there’s question of whether anything really could have prevented it. After all, landslides have been a naturally occurring geological phenomenon in the mountains long before humans set foot here.

“These mountains have shallow soils and rocks close to the surface. You get enough rain and saturate the soil to the point where it liquefies, and you’re always going to get some landslides,” said Shumpert.

But most experts agree that slope construction exacerbates the problem. Ground that has been disturbed can’t hold as much water, said Wooten, and therefore increases the chance that it will liquefy and become a landslide.

“No, you won’t ever stop all of them, but you can limit them, and you can minimize how bad they’ll be,” Shumpert said.


“With enough planning and engineering, quality construction, and building on slopes that aren’t so crazy high and steep,” he said. “But it depends how much money you put into it, and how risky the area is where you’re building on a slope.”

The mountain where the Donin landslide occurred may qualify as a risky area. A landslide in the same subdivision killed a woman in 2003. And in the 24-hour period that the Donin slide occurred, another landslide on the back of the same mountain in the Villages of Plott Creek subdivision sent large volumes of mud into Plott Creek, turning the water into mud for a couple of miles.

“There’s been a lot of activity in the mountain right there,” said Pruett.

But careful building practices and slope regulations could prevent that activity from wreaking havoc, added Rapp.

“We certainly can’t control natural events, but we can have an impact on their effects,” Rapp said.

Geologists nearly finished with Macon landslide study

By Sarah Kucharski • Staff Writer

N.C. Geological Survey staff hopes to finish its survey of Macon County’s landslide prone areas by the end of this month and present its research to county commissioners.

Macon waiting on Peeks Creek decision

By Sarah Kucharski • Staff Writer

Streambank restoration along Peeks Creek in Macon County, where a massive landslide killed six residents following back-to-back hurricanes in September 2004, is on hold as county officials wait to hear if they will receive funds to do the project after missing initial application deadlines.

Landslide death case ends in mistrial

A wrongful death lawsuit surrounding a landslide in Maggie Valley was declared a mistrial this week after a jury failed to come to a unanimous decision.

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