Rock the house

Insurance policies for Tar Heel homeowners now specify that any earth movement “caused by or resulting from human or animal forces or any act of nature” is not covered.

In June, Buncombe County received applications for 23 major subdivisions encompassing more than 3,000 acres, with much of the development planned for steeply sloping and potentially unstable land. Then there are the several thousand acres of such already-approved enclaves as Reynolds Mountain, The Settings of Black Mountain, Versant, Crest Mountain and SouthCliff. It seems pretty clear that thousands of Buncombe County families will soon be living on steep mountain slopes.

Our local municipalities are busy handing out building permits for these projects. But do our elected officials really understand the potential dire consequences of allowing such development to happen?

The state Division of Emergency Management’s Hazard Mitigation Section has determined that Western North Carolina’s 21 counties are at high risk for such natural hazards as landslides, flooding and severe winter weather.

To ensure the safety and well-being of families buying property on mountain slopes, due diligence requires the regulating entity to impose the strictest protocols. But how can they enact meaningful safety standards when they haven’t identified the areas most at risk for destabilizing slopes?

The U.S. Geological Survey has published extensive reports on the standards required for safe slope construction. Angle of slope is only one aspect of determining geological stability. Municipalities need to hire a state-licensed geologist and engineering firm to conduct detailed landslide-hazard mapping within their borders. Once the most perilous areas have been identified, owners and developers should be apprised of the status of their property.

Permits for developing high- to moderate-risk property should require an on-site geologic study by a licensed professional. And when a construction permit is issued, the developer should be required to appoint an engineer or architect to be responsible for all aspects of the project.

Permits for slope construction should also require a performance bond to ensure that developers adhere to the terms of their permits. Failure to comply would result in a penalty of 3 percent to 5 percent of project costs.

But even if a local governing body adopts an effective slope ordinance, people buying property in designated landslide areas must still be clearly informed of the grave risks they’re assuming.

Thankfully, relatively few people die from landslides (six such deaths have been recorded in WNC since 2003). But landslides often cause extensive — and uninsurable — property damage. And in 2005, the N.C. Rate Bureau approved new insurance language to clarify the confusion over natural versus human-created landslides. Insurance policies for Tar Heel homeowners now specify that any earth movement “caused by or resulting from human or animal forces or any act of nature” is not covered.

Facing the partial or total uninsurable loss of their homes, desperate homeowners turn to the courts and will name any party that could possibly be liable. Landslide litigation has become more complicated as the list of defendants has grown to include public agencies, builders, engineers, sellers, realtors, neighbors and insurance companies.

There is increasing legal awareness that silence on the part of the seller and the real estate industry puts prospective homebuyers in designated hazard zones at a serious disadvantage. Courts are recognizing this inequity and are finding for the injured parties.

“We should not realistically expect a purchaser to check the county clerk’s office, the planning and zoning commission files, the Army Corps of Engineers, the United States Geological Survey, the state geologist, other agencies and the Internet,” law professor Denis Binder argued in “The Duty to Disclose Geologic Hazards in Real Estate Transactions” (Chapman Law Review, Spring 1998).

Some governing bodies have passed hazard-disclosure legislation. California passed its Natural Hazards Disclosure Act in 1998. But in North Carolina, there is no such legal requirement.

State Rep. Pricey Harrison did sponsor HB 1512 last year, which would have required disclosure of natural hazards in coastal areas. After pressure from the real estate lobby, however, the General Assembly failed to take action. Tar Heel Realtor, an online publication of the North Carolina Association of Realtors, called the defeat of this public-interest bill a “great win for real estate.”

Meanwhile, at least one mountain community is taking steps to address this critical and growing problem. Much of the information in this commentary is based on the studies and recommendations of the Boone Steep Slope Development and Multi-Family Housing Task Force. In July, Mayor Loretta Clawson of Boone told the task force: “We have to put some regulations in place, and a lot of them are safety regulations. We certainly don’t want anything bad to happen to anybody that is living on a steep slope.” Asheville and Buncombe County leaders should follow Boone’s lead and take meaningful steps to protect area residents.

[Madison County resident Lynne Vogel formerly owned a bed-and-breakfast in Asheville.]

The town of Boone will hold a public hearing Thursday, Sept. 14, at 7 p.m. in Courtroom No. l of the Watauga County Courthouse to consider the task force’s recommendations.

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