Homeowner not told of flooding

County, developer, builder signed document designed to protect Commonwealth resident

Web posted July 5, 2000

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By Heidi Coryell
Staff Writer

Gail Allen shakes her head with regret when she thinks about all the chances she had to live somewhere else, anywhere that wasn't fated to flood so badly her children would have to be rescued from the attic by canoe.

Gail Allen of 45 Dominion Way gathers refuse at her home in Commonwealth subdivision after flash floods damaged it and several others in the area. Ms. Allen's daughter, Tori, 7, rests on couch cushions after helping her mother. JEFF JANOWSKI/STAFF

Now, less than six months after paying $75,900 for a townhouse at 45 Dominion Way, and two weeks after flash floods swept through part of her subdivision, Ms. Allen, her 10-year-old son and 7-year-old daughter are moving out.

``I'm calm because it's been such a shock,'' Ms. Allen said. ``I don't know what the next step is.''

In the days after the flood, Ms. Allen has questioned the integrity of the people she thought would protect her from such an event - the county, her real estate agent, the attorney who closed on her home and the previous homeowner.

Information obtained by The Augusta Chronicle revealed something Ms. Allen never fathomed: Even though she was unaware her home was built in the lower part of a 100-year flood plain, the county knew, her builder knew and so did the subdivision's developer. And all three parties signed a document that, in part, was supposed to make sure she knew, too.

The last four townhomes built in west Augusta's Commonwealth subdivision - 44, 45, 46 and 47 Dominion Way - were constructed in 1994 under the provisions of ``indemnity and hold harmless'' agreements. The agreements absolved the county of any liability for flood damage to the homes because they were built three years after an ordinance passed prohibiting construction in that part of the flood plain.

Agreements The hold harmless agreements on the homes at 44, 45, 46 and 47 Dominion Way say: ``The developer shall indemnify and hold harmless . . . the county . . . from any and all loss, liability, cost, damages, fines, penalties and forfeitures, including but not limited to property damage, personal injury and death at any time . . . arising or alleged to have arisen . . . out of the development of (each of the four homes) . . . in accordance with FEMA's minimum flood regulations and not the current Richmond County flood damage prevention ordinance.''

Augusta officials say the agreement also aimed to ensure those four homeowners knew about the agreement, requiring that it be referenced on their deeds.

Although the hold harmless papers are on file in county realty records, it was not mentioned on any of the homes' deeds. It is unclear who should have altered them.

City officials presented with The Chronicle's findings said they were unaware of the oversight.

``There was concern with (the builder and developer) having an approved plan and whether or not we would have a legal right to stop them from building,'' City Attorney Jim Wall said of the agreements.

``Our goal was be sure that somebody who bought the property was informed,'' he said. ``Both agreements were on record, and they should have been picked up by the purchaser when they bought the property.''

Ms. Allen, meanwhile, is homeless. Friends and family are providing temporary lodging, but she says she has no prospects for a long-term solution.

Flood victims

Residents of Commonwealth have invited several city and state officials, including Mayor Bob Young, to a meeting scheduled for 6:30 tonight at the Warren Road recreational center to discuss possible solutions to the flooding problem in their subdivision. If an agreement can't be reached, some homeowners speak of filing a class-action lawsuit against the city.

Building permit records show at least six other houses down the street from Ms. Allen's were built after the flood ordinance was passed in 1991. Planning officials and county engineers say these homes were ``grandfathered'' into the ordinance and that preventing them from being built would have been unfair practice. Homeowners question that logic.

Despite the confusion surrounding Commonwealth and its residents, everyone has been able to agree that Ms. Allen deserved to know her house was built on a flood plain, that it had flooded at least once before under its previous ownership and that it was only a matter of time before it would flood again.

``I feel kind of dumb,'' Ms. Allen said one recent afternoon, donning yellow rubber gloves to pick up pieces of plastic and parts of toys scattered throughout her flood-ravaged home. ``But it's the first house I ever bought. .ƒ.ƒ. Nobody told me anything. If they had told me, I would have gotten flood insurance. I would have looked at another house.''

History repeats

In 1979, the county adopted a flood damage ordinance identical to the Federal Emergency Management Agency's minimum development requirements, which prohibited building in the flood way, but permitted it in the 100-year flood plain, an area that has a 1 percent chance of being flooded in any given year.

In October 1990, however, two days of flash flooding caused an estimated $17 million in damage to the Augusta area. That flood prompted the Richmond County Board of Commissioners in August 1991 to adopt on a 5-0 vote a more stringent ordinance on flood-damage prevention, prohibiting development not only in the flood way but also in the lower half of the 100-year flood plain.

Building is still permitted in the flood plain's upper fringe.

``The agreement protected us (the city),'' said George Patty, executive director of the planning and zoning commission. ``It didn't protect somebody asleep in the middle of the night (during a flood), but it did protect people who lived there by notifying them.''

But without recording a referencing clause on the homes' deeds, which was a condition of the hold harmless agreement, there were no guarantees the initial homeowners or any subsequent homeowners would know the houses were situated next to a flood way and that the county was absolved of all responsibility for flood damage.

``There are limits to what the government can do to protect people,'' Mr. Patty said.

In the beginning

Crane Creek Development Co. began clearing the land and building the roads for Commonwealth in the early 1980s. The developer sold parcels to various builders for more than a decade.

About two-thirds of the 4.5-acre property is situated in the 100-year flood plain, maps on file at the planning commission show.

Of the four Dominion Way homes built in 1994, Crane Creek Development Chief Executive Officer Jimmy Johnson signed a single hold harmless agreement on behalf of his company for Lot 90, now 46 Dominion Way.

According tosecretary of state records, Crane Creek Development was dissolved administratively the same year the final four Commonwealth homes were constructed.

The other three homes were under hold harmless agreements with Masters City Builders, whose current CEO is H. Earl Thompson of Riverfront Drive, according tosecretary of state records.

When contacted at his home by The Chronicle, Mr. Thompson denied affiliation with Masters City Builders or any other building company.

The developer, Mr. Johnson, said he was unaware the hold harmless agreement he signed was never referenced on the deed of 46 Dominion Way, and he thought his attorney had handled the transaction.

John Flynt and Jimmy Lester, Mr. Johnson's attorneys, say they handled some isolated transactions in the Commonwealth subdivision, but they never looked at a hold harmless agreement.

And Mr. Johnson, who still owns but rents out three homes in Commonwealth, said he signed the agreement believing the county was planning to improve drainage systems along Crane Creek by adding a retention pond upstream.

``If I had to do it over again, I'd have raised a lot of hell,'' Mr. Johnson said of developing Commonwealth. ``I thought I was going the proper route. I trusted that the city was going to do something (about the drainage problem).''

He said he also thought the Department of Transportation was planning to expand a culvert at Interstate 20 that had backed up during the 1990 flood.

County engineers confirm there are maps showing proposed changes to Crane Creek drainage basin. They say difficulty purchasing land for additional retention has prevented them from doing much of the work.

But Mr. Johnson said he stands behind his subdivision, adding he developed responsibly by adhering to the county's requirements. He adds there are flood prone areas all over the city.

``Just look at downtown,'' he said.

Moving on

For Ms. Allen, it's easier to identify what she has left, rather than try to tabulate what's gone. She has a single baby picture of her daughter, Tori, but every other photograph, including any of her son, Trent, was ruined.

Her winter clothes were spared, but most of her summer apparel and almost all her children's clothes were claimed by mildew, mud and sewage. The bulk of her furniture has been hauled off by trash trucks.

And many of her neighbors are going through the motions of cleaning up for the second time.

Heather Thompson, who lives on Dominion Court, is among those spearheading efforts to have the Commonwealth homes purchased by the city, after being flooded for the second time in two years.

``Last time, I let it drop. I took their word for it that they were going to fix the problem,'' Ms. Thompson said of city officials. ``But this time, I'm not stopping.''

The city says short of buying every home that has ever flooded, educating homeowners in flood-prone areas might be the only way to protect them.

``We as a city get questioned on our strict review of things, but this is why we do it,'' County Engineer Doug Cheek said. ``These types of problems are why.''

Reach Heidi Coryell at (706) 823-3215.