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Did the Earth Move for You, Too?

Homeowners, builders and legislators are heaving over the Front Range's swelling soils problem.

John Duffy gives one heck of a house tour. It usually starts in his driveway, with Duffy pointing out a support column to his garage, swathed in metal bands that grip the door frames and keep them from pulling apart. He gives the column a shove, and the entire structure groans.

"My 225 pounds are now shaking my three-car garage," Duffy says.
Mysterious forces seem to be at work throughout the Duffy house. Cracks and crevices mark where the driveway is pulling away from the garage, where the front porch is trying to flee the house. A sidewalk that used to slope away from the house now slopes toward it, as does the backyard, sending storm runoff into the basement.

Inside, cracks of up to several feet snake diagonally, vertically and horizontally from windows, columns and joints in several rooms. Most of them are covered in clear tape, to keep the drywall from crumbling onto the carpet, but a few seem fresh even to Duffy. ("This is brand-new," he says, eyeing an untaped fracture in his bedroom wall. "This is taking off.") Window frames look cockeyed, floors tilt, some doors won't stay open and others won't close, like the door to his younger son's bedroom.

In the master bath, which shows signs of extensive tile regrouting, a slight breeze blows through a crack above the bathtub. Heavy ceramic tile in the kitchen has broken into a mess of shards and splinters, thanks to spiderweb cracks issuing from the base of a stressed column. In the unfinished basement, a pipe cap and a drain once level with the floor have reared their ugly heads, poking several inches into the room.

"It hurts to walk through the house," Duffy says. "Every time I take a good hard look, it reminds me of the shape the Duffys are in."

In 1993, John and Patty Duffy purchased their Highlands Ranch funhouse from Writer Homes for $234,000 and moved into it with their two sons. Within months the new home began to shift, pop, buckle and heave. The Douglas County assessor's office now says that the property is worth only $99,303. Duffy says that at night he can lie awake and hear the house creaking and cracking. His home isn't settling. It's rising, like the accursed undead in some half-baked horror flick.

Engineers say the beast actually lies under Duffy's home, in the sandy clay and claystone upon which the house was built. Expansive soils are common to many areas along the Front Range; when wet, the soils swell and can exert thousands of pounds of pressure, cracking foundations, floors and walls. Duffy claims that his house was built in one of the most problematic areas in his subdivision, an area in which the builder was advised that high swelling could occur.

In recent years, as developers have rushed to build entire communities in areas known to contain expansive soils, thousands of homeowners have learned more than they ever wanted to about the treacherous geology of the region. The controversy has triggered several costly class-action lawsuits against major homebuilders from Highlands Ranch to Boulder, as well as a flurry of new regulations in some counties requiring builders to remove swelling soils before construction begins and replace them with more stable dirt or to install structural wood floors that resist heaving, hiking the cost of new homes by a few thousand dollars.

Now state lawmakers are considering new legislation that would toughen existing laws requiring builders to disclose potential soil problems to home buyers. "We're getting a lot of building that's put together real quick without regard for the soils we have," says state senator Ken Arnold, one of the sponsors of the bill. "Maybe it's only 1 or 2 percent of the homes that are falling down, but I think that's too many."

At first glance, Arnold's bill would seem to be a boon to consumers. It triples the token penalty that can be levied under existing law from $500 to $1,500 against builders who fail to disclose potential soil problems at the time of purchase. It also requires builders to follow their engineers' recommendations as to the type of foundation required to correct a soil problem and to supply buyers with a one-page, "plain English" summary of the risks and options available to them. But the issue is a contentious one, and the bill has come under fire from homeowners and builders alike.

"Do they really think they can condense dozens of pages of geotechnical data to one page in plain English?" asks Duffy, who's spent thousands of dollars obtaining his own engineering reports on his property. "This is trying to shift the financial responsibility from the builder to the buyer and subvert the consumer-protection laws."

"It's a Jekyll-and-Hyde sort of bill," adds Scott Sullan, Duffy's attorney, who's represented homeowners in several major lawsuits over expansive soils. Sullan notes that one provision of the bill would exempt builders who follow the disclosure rules from claims of "willful and wanton conduct" or deceptive trade practices. In other words, they'd be immune from punitive damages or triple damages under the consumer protection laws. "The only people who would benefit from that," he says, "are people out to defraud the home buyer."

Builders aren't wild about Arnold's proposal, either. "It adds blood to the class-action feeding frenzy that we're seeing in the state surrounding soil issues," says Abby Lopez Muniz, director of government affairs for the Colorado Association of Home Builders.

Lopez Muniz adds that builders are wary of the simplified disclosure requirements, particularly since the adequacy of current soil summary reports given to home buyers has been hotly disputed in soil litigation. The CAHB's attorneys also believe that the conditional exemption from treble damages isn't strong enough, she says. (Sullan insists such damage cases are rare in Colorado.)

Arnold says that builders are "kind of myopic" when it comes to policing their own industry and fail to appreciate the merits of the legislation. "They should be telling people what they're getting into--and by doing this, they're going to be relaxing their own liability," he says.

And what if consumers don't understand the "plain English" soils analysis they receive? "If they don't understand it, they should go back and ask what it means," says Arnold, "and if they don't trust the homebuilder, then they ought to get an attorney."

After several months of negotiating with Writer over the problems with his property, Duffy did just that. He and a neighbor whose home was also buckling hired Sullan and filed a civil suit against Writer. But in 1997 the Colorado Court of Appeals ruled that the claims must go to arbitration because of a clause in the buyers' warranty agreements. Duffy's arbitration is scheduled for next month, after five years of frustration and mounting anxiety over the fate of his investment.

"Why is it a person has got to be a geotech engineer or hire an attorney to buy a house in Colorado?" Duffy asks. "Do they have that little faith in their product? Why doesn't the legislature look at home-buyer protection instead of homebuilder protection?"

Duffy describes the two-page summary report he received from Writer at the time of purchase as a "generic form letter" that gave little indication of the troubles to follow. He says both Writer and its engineering consultant declined to supply him with the company's full soils analysis; when he finally obtained it from other sources, he says, he learned that it contained several recommendations that simply weren't followed.

"They didn't tell me I had one of the three hottest lots of this tract," he says. "They didn't tell me they were going to ignore their structural and geotech engineers with regard to grading and foundation requirements. All of this was known to them before they ever took one shovelful of dirt out of this lot."

Writer executives dispute Duffy's claims. "We feel we gave him adequate disclosure that clearly met the law and was above and beyond that," says Dan Nickless, Writer's chief operating officer. "We invited him to contact our geo-technical engineer to get as much detail as he needed. We would never consider not making available to a buyer any information we have."

Nickless says Writer did follow its engineering report for the property, including grading the property for positive drainage away from the house and installing a structural wood floor, "which was at that time and still is the state of the art for addressing anything to do with expansive soils." He adds that the company has sought to work with Duffy to correct problems but that he refused further site visits after retaining Sullan, and that it's the company's position that Duffy has "enhanced his problem" by placing a sprinkler system too close to the house and making other modifications.

"Duffy's a tough deal for us," Nickless says. "We've been dying to help the guy. Quite honestly, he wants nothing short of somebody repurchasing his house and giving him a big payday."

Duffy says his lawn sprinklers can't be held responsible for the kind of swelling that even Writer's structural floor can't contain. "I have the kind of floor people sue for," he says. "Unfortunately, they didn't even put this together right."

As for Nickless's suggestion that he failed to give Writer a chance to correct the problem, he responds, "I gave them damn near two years. How much time do they need? At some point, I have to protect my rights under the statute of limitations."

Yet the underlying issue in Duffy's case, as in so many others, hinges on the question of disclosure. Many of the plaintiffs in expansive-soil cases are transplants to Colorado--like Duffy, a United Airlines customer-service representative transferred from Southern California. They say they'd never seen such soil conditions before, and the disclosure forms they received didn't give them sufficient information about what structural measures should be taken to avoid the problem.

"I've never been so blindsided by anything in my life," says P.K. Klass, a resident of uincorporated Arapahoe County who's been battling swelling soil under her house for the past three years. "If you move to Pacific Palisades and your house falls into the ocean, no one's surprised. If you move to Charleston and a hurricane hits you, that's a well-known thing. If you come to Colorado--well, you imagine your house settling. Who would ever think it would start coming up out of the ground?"

Klass, who had previously lived in Georgia, California and Massachusetts, bought her house from Village Homes in 1995. At the time, she received a brief summary report that stated the soils in her neighborhood "exhibited zero to very high swell potential." But she says that she also received verbal assurances from the Village people that her property was fine and that she was given no opportunity at all to consider something stronger than a conventional concrete slab foundation.

"I was told, 'You don't need a structural floor--your property's great,'" she recalls.

But then she started to see cracks in her driveway and her house, six degrees of separation between her and her porch, and a basement floor that was movin' on up. She refers to her back deck as the Titanic ("It just lists upward"). Her summary report indicated that no water was found in the holes dug for the piers supporting her house, "but if I dig one foot in my backyard, I hit a lake."

"The builder says they'll eventually fix it," she says. "I have two letters saying that once the movement stops, they'll repair the house. But does it ever stop?"

Last summer Klass received another letter from a Village Homes executive, asking her to sign a confidentiality agreement that would prevent her from talking to any third party about her situation. Any breach of the agreement "shall entitle Village Homes to liquidated damages in the amount of $5,000," the letter stated.

Klass refused to sign. "They were asking me to sign away my First Amendment rights," she says. "If that's a condition of fixing my house, that's coercion."

Village Homes vice president Don Eley says it's customary for builders to monitor slab movement before replacement and points out that some movement is expected. As for the company's confidentiality agreement, "That's related to the litigation climate we have in Colorado," Eley says. The agreements allow Village to quietly extend assistance to some buyers beyond what the warranty calls for, he explains.

After months of dealing with the builder, Klass began seeking out structural engineers herself. "One of them told me never to buy a house in this state that isn't at least forty years old," she says.

Scott Sullan says the homebuilding industry is doing more now to address soil problems before they start simply because insurance companies are requiring them to do so; a structural wood floor installed at construction costs an extra $2,500 or so, while retrofitting after upheaval has occurred can cost $40,000 or more. "Clearly, 'buyer beware' simply isn't good enough anymore," he declares.

Duffy hopes he can persuade an arbitrator to adopt a similar view when he visits Duffy's forlorn home next month. "It's scary to have one man making the decision about the biggest investment of your life," he says. "Fortunately, the house does all the talking."

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