Wednesday, February 11, 2009

Judge Awards $405K in Lincoln Flood Plain Suit

By Lori Pilger
Lincoln Journal Star - Saturday, Dec 27, 2008

A Lancaster County judge has ordered the city of Lincoln to pay $405,000 to three couples given city-issued building permits but not told that their new homes would be in a 10-year flood plain.

The city owes Troy and Shari Stonacek $165,000, Brad and Jennifer Sheaff $140,000 and George and Lori Bristol $100,000 in damages for not informing the families when it gave the permits for them to build, according to the ruling by District Judge Steven Burns.

Government officials told the families at a meeting in May 2005 their homes were in a flood plain - prompting three lawsuits.

In 2007, Burns found the city negligent after a bench trial.

On Dec. 1 and Dec. 4, he heard testimony again in the cases.

At issue was the amount of damage the couples had as a result of the city's actions.

Experts for the couples and for the city didn't vary greatly as to how much the homes in the Cardwell Woods subdivision in southwest Lincoln would be worth if they weren't in a 10-year flood plain, where 4 to 5 inches of rain in 24 hours causes a flood.

The Stonaceks' home would be worth $600,000 to $630,000; the Bristols' $300,000 to $330,000; and the Sheaffs' $500,000 to $525,000, they said, according to the order.

"However, there is significant difference between the experts on the method of determining the amount of damage to the properties in this case," Burns wrote.

John Bredemeyer, the expert for the plaintiffs, put total damages at $755,000. Defense expert Frank Frost put it at $178,125.

In the end, Burns ruled almost smack in the middle.

According to the order, Bredemeyer considered that the couples essentially could not use their basements; that homes within a flood plain were valued 5 percent less than comparable homes outside the flood plain; and that the homes were affected more because they were in a 10-year flood plain rather than a 100-year flood plain.

Frost argued that method unfairly compounded damages. He said the only question necessary was if the property was in or out of a flood plain. He said he relied on three studies that reflected an 8- to 12-percent difference in price between homes in a flood plain and homes that aren't. It was his opinion the homes had been damaged by 12.5 percent.

But Burns' order said it was unclear how he arrived at 12.5 percent. He said Frost testified that he had found two homes in a flood plain in Lincoln that sold for 18-19 percent less than homes like them that were not in a flood plain.

"The court is persuaded that it must guard against overlapping impact on value from the variables considered," Burns wrote.

But, he said, he was persuaded to take three factors argued by the plaintiffs into consideration:

1.) That there is a distinction between a home with a dry basement and one that takes on water, regardless of if it's in a flood plain;

2.) That a home in a flood plain would be valued differently than the same home in another location, and;

3.) That the frequency of flooding probably also would affect what someone would pay for it.

Burns said he found it is "more than probable than not" that the plaintiffs have been damaged in the three areas.

"Having made this finding, the court of necessity must engage in some degree of estimation - speculation, if you will - as to the amount of the damage," he said.

Then Burns entered judgment for the Stonaceks for $165,000, the Sheaffs for $140,000 and the Bristols for $100,000.

According to court records, the city knew well before 2005, even before the families purchased the lots, the area was in a flood plain.

A state Natural Resources study of the area, completed and submitted to the city in January 1997, showed a flood-elevation level of 1,208 feet.

City employees put the map in the Cardwell Woods file at the Building and Safety office. Yet, when the city issued building permits to the families between 1998 and 2003, each was given a flood plain elevation based on an older, and inaccurate, FEMA map.

At trial, the city argued - among other things - that it had no legal obligation to the families. It also contended it was immune from the claims because whether or not its employees disclosed the Natural Resources map to the plaintiffs was a "discretionary act" and, thus, protected by tort law.

Burns rejected the arguments.

Monday, February 9, 2009

Surveyors Face Penalties for Elevation Certificates

By Jessica Holloway
KFDM-TV News - Beaumont,Texas,USA
February 9, 2009 - 6:34 PM

Two Southeast Texas surveyors will be penalized for mistakes in determining the elevation of homes in West Jefferson County. KFDM News has learned one of those surveyors is Anthony Leger from SouTex surveyors in Port Arthur. The board has not released the name of the other surveyor but decided they both broke at least five board rules.

The US Geological Survey identifies benchmarks and sets elevations. FEMA uses that information for its flood maps. Surveyors are required to use FEMA's numbers. In this case, FEMA changed the elevation of areas in Jefferson County by three feet. However, many surveyors were not made aware of the change. At least 160 homeowners want to take advantage of a government buy-out because of questions about elevation.

"FEMA didn't bother telling anybody about it. They were relying on information they had. It was erroneous," said Tom Roebuck.

Many people who live in the Country Road Estates neighborhood found out their home elevations were off by three feet. One of the people who helped bring that to light was in fact, Anthony Leger. Now he and others could face penalties, ranging from a fine all the way to the maximum, license revocation. Garey Gilley with the Texas Board of Land Surveying says that's unlikely.

"I do not believe it will be the maximum. I assure you it will not be revocation of license. We'd have to demonstrate they knowingly disregarded over time," said Garey Gilley.

Staff members should make a final decision by Tuesday. Others who want to file complaints can do so by filling out a complaint form on-line at the board's website. If the surveyors are found in violation, they'll face the same penalties.

Saturday, February 7, 2009

Surveyors face punishment for elevation errors

The Texas Board of Land Surveying met in Austin Friday. It's decided two Southeast Texas surveyors violated at least five board rules. ...

Surveyors face punishment for elevation errors
- Beaumont,Texas,USA
February 6, 2009
Jessica Holloway

KFDM News has learned two Southeast Texas surveyors who shot elevations of homes in West Jefferson County could face punishment for how they carried out their work. The Texas Board of Land Surveying met in Austin Friday.

It's decided two Southeast Texas surveyors violated at least five board rules.

The surveyors filed elevation certificates for families living in the Labelle-Fannett area of West Jefferson County. After Hurricane Ike, homeowners in that area found out their elevations were off, in some cases three feet lower than they thought. As a result, many people in Country Road Estates had several feet of water inside their homes. Some lost everything.

A few homeowners have filed civil lawsuits against their surveyors. They want to recoup the 25% of the lost value of their homes not covered by FEMA.

Monday two staff members from the board will decide the appropriate disciplinary action. That could include a fine or the maximum penalty, losing their licenses. The two surveyors have the option of telling their side of the story before the Texas Attorney General. The board will have the final say.

As for any other property owners who file a complaint against a surveyor, those complaints will be investigated by the board and if it rules against the surveyers, the same range of punishment is guaranteed.

Thursday, February 5, 2009

Jefferson County homeowner claims incorrect survey caused home to flood

Jefferson County homeowner claims incorrect survey caused home to ...
Beaumont Enterprise - Beaumont,tx,USA
Majors, 43, of Port Neches, will present a complaint against Soutex Surveyors, Inc. of Port Arthur to the Texas Board of Professional Land Surveying for ...

Jefferson County homeowner claims incorrect survey caused home to flood
February, 5, 2009

James Majors' Hillebrandt Acres cabin would not have flooded if surveyors who established his property's elevation had done their homework, the homeowner said.

Majors, 43, of Port Neches, will present a complaint against Soutex Surveyors, Inc. of Port Arthur to the Texas Board of Professional Land Surveying for issuing an incorrect elevation certificate for his home on Hillebrandt Bayou in 2003.

The surveyors acted in good faith, the company president said, but the error may be rooted in a natural phenomenon discovered last year.

"I want someone to hold up to their objectives, to say, 'I made a mistake'," Majors said by phone Thursday.

In 1996, Majors hired Soutex to complete a property survey for his cabin in the Hillebrandt Acres subdivision near the LaBelle area in unincorporated Jefferson County. Before building a cabin on the property along Hillebrandt Bayou, he wanted to find the property's elevation above sea level so he could research the historical floods that hit the area and build above that point.

The survey placed his yard at 10 feet above mean sea level, according to his complaint, and in 2003, he began building almost 3 feet higher than that to rise above the historical flood level in the area.

In July 2003, Soutex created Majors a final elevation certificate he could file with Jefferson County to receive final permits, placing his home's bottom floor at 12.9 feet.

At that level, the Hurricane Ike storm surge should have hit more than a foot below the cabin's bottom floor.

Majors contacted Soutex to ask about the discrepancy, and the survey company's president, Anthony Leger, told him about other homes in the Country Road Estates area across Hillebrandt Bayou that had similar problems.

Dozens of homes in the LaBelle area were lower than their elevation certificates said, and after the storm, many were too low to get building permits from Jefferson County, because they were below the 100-year flood plain. Majors' home was above the 100-year level. Still, the storm surge pushed more than a foot of water into his house.

For 30 years, property elevation in the area of Country Road Estates and other homes in the LaBelle area had been produced using data from a federal monument - a brass disk - placed a little more than two miles northwest of Port Acres, Leger wrote in a letter to Jefferson County in May 2008.

That monument, placed by the National Geodetic Survey in 1954, placed the monument's elevation at 6.32 feet above sea level, Ronnie Taylor of the National Geodetic Survey told The Enterprise in late December.

Federal surveyors checked the area again in the early 1980s for FEMA flood maps, and the benchmark's elevation was 3.1 feet lower.

Professional surveyors cannot take the time to establish mean sea level each time they shoot a survey, Leger said, so they rely on government data from the hundreds of thousands of benchmarks across the country. The benchmark's level remained too high in the government record.

Leger said the benchmark's level could account for incorrect elevations throughout LaBelle. When he learned of the problem in spring 2008, he wrote a letter to the county.

The benchmark's elevation change may be caused by subsidence - the sinking of soil often caused by oil drilling or groundwater pumping in an area. A 1983 FEMA flood study said in the area where the benchmark lay, "the subsidence is about 3 feet."

Majors said the surveyors should have known about the benchmark's elevation change and should have not have used data from the benchmark that changed.

"I did my homework (while building the house)," Majors said. "Why didn't they do theirs?"

Surveyors rely on published data from the monuments, Leger said, unless the benchmarks prove incorrect.

"It's a normal practice, yes, sir," Leger said. "It's just unfortunate that LaBelle is in that situation."

The surveying board will meet at 9 a.m. in Austin and may issue its findings at a later meeting. The board can revoke or suspend surveyors' licenses.