SIERRA CANYON WALLS

Submitted by Joe Bower, Sierra Canyon Homeowner

The Sierra Canyon board has received a Report prepared by Wood Rogers on Sierra Canyon Walls, but has not yet released it to owners. Maybe after the board meeting on March 14, 2018.

Wood Rogers offers a full range of consulting services including civil engineering, land planning, surveying, landscape architecture, geotechnical, environmental, water resources, transportation and structural engineering.

So Wood Rogers was already involved with Somersett as per their website. Isn’t it a bit of a conflict of interest to use them for an assessment to determine if our walls are properly built and safe?

https://www.woodrodgers.com/services/geotechnical/construction-services/somersett/

Somersett is a master-planned residential community located in northwest Reno that includes an 18-hole Tom Kite designed golf course with seven lakes, a 9-hole par three course, and a $9 million recreation center. Wood Rodgers staff provided detailed geotechnical engineering, value engineering during construction, slope stability studies, rockery wall survey and analysis, materials testing, special inspection services during building construction and City of Reno Engineer of Record services during the construction of various residential developments, several roadways, and a public park. Unique challenges included remediation of highly expansive soils and expansive altered bedrock beneath structural areas; slope stability issues including stabilization of a major slope failure and mitigation of rockery wall failures.

Humpty Dumpty on Rockery Walls

Submitted by Geoffrey Brooks  –  Association Member

Humpty Dumpty Sat on a Wall

I woke up on Sunday to see the sun shining, a gorgeous spring day followed. I went for a walk and carried out my own cursory rockery wall inspection.

After a gloomy Saturday, a long well-attended presentation and QA session at the TCTC, one felt that Somersett’s world was coming to an end. All 13.5 miles of SOA walls are about to collapse. All privately owned rockery walls are doomed. What about the “not-surveyed” walls in The Village, The Vue, and Sierra Canyon? Litigation that will go on for 5 years (minimum) and cost, if it goes to trial (with expert witnesses) probably the best part of $5 million.

Basking in early Spring sunlight, I could see that most walls in my Somersett neighborhood and in the communities nearby in NW Reno seemed robust, solid, well built, surviving at least 15 years of rain and earthquakes.

Yes, after our do-it-yourself primer from American GeoTechnical and studying their report, I was alarmed. However, they simply have not accessed the relevant site records to see how each wall was built, and the quality of the soil at that specific wall site. The real question, is what caused our 360’ walls to fail? Maybe this is primarily due to the poor soil conditions, which when saturated with rain, oozed away. Soil liquefaction can cause buildings to topple, rock walls to crumble. Just google mudslides in Southern California! Well built walls and buildings were carried away, we all saw it on TV.

Somersett has been developed over the last 15 years. One can see from the current Toll Brother activities at Village 6, that significant terra-forming of the foothill soils of Mt Peavine are required to construct suitable building pads. There have already been failure of building pads, requiring extensive shoring up of the houses built on them. We do have bands of clay within Somersett, which need to be removed before building a house (or pad). Clay with water makes great ooze, which will flow! There was a successful Chapter 40 suit by Somersett Development against the designers and builders of the “cutting”, and extensive modifications had to be made for safety reasons.

Perhaps our legal efforts should be aimed at the “failures” – so far. It seems that the affected areas are on the golf course where extensive terra-forming has been performed. The 13.5 miles of walls surveyed (presumably on SOA land), were most likely built to the prevailing good building standards (for rockery and other walls) at the time. It seems highly unlikely that any of these were “improperly built”. Hence, unlikely to fail.

Walls do require maintenance. Our reserve studies calculate the life of a Rockery Wall at 30 years. Much of Hadrian’s Wall in Britain is still standing after 1800 years. At the turnover, all the construction records, permits, approvals, etc. should be on file with First Services and available for either expert or curious homeowner inspection.

Somersett as a whole, has little to worry about from collapsing walls, unless you have a home in an extensively terra-formed area … but then the unusual climatic events which caused the walls to collapse has happened already. So, I suspect that you have little to actually worry about now; if your rockery walls are still standing!

Remember, it was Humpty Dumpty who fell down and had to be rebuilt – NOT THE WALL!

A Homeowner Thought on the MEA

Submitted by Joe Bower – Sierra Canyon Homeowner

This is a good time for the two boards to agree to cancel the MEA !

The original MEA states:

“In order to maintain a uniform landscaping scheme along the Main Thoroughfare, Somersett Owners Association desires an easement for the purpose of maintaining repairing and replacing the landscape, hardscape, softscape, and related irrigation systems, including controllers, within the Easement Area (“Somersett Obligations”).” (emphasis added)

The revised MEA states:

“for the purpose of maintaining a uniform scheme, including without limitation maintaining, repairing and replacing the landscape, hardscape, softscape, and related irrigation systems, including controllers, within the easement areas – along Somersett and Del Webb Parkways (the Main Thoroughfare.)” (emphasis added)

Anyone who is not blind can see that there is no such thing as a “uniform landscaping scheme aka uniform scheme” on the long with six roundabouts Somersett Parkway (a small portion of which lies within Sierra Canyon – between the NE Monument and the intersection of Del Webb Parkways East and West) and Del Webb Parkway East and Somersett Ridge Parkway – the three of which comprise the Main Thoroughfare.

The differences between Somersett Parkway and the two parkways in Sierra Canyon is like the difference between technicolor (Somersett Parkway) and black and white (the two parkways in Sierra Canyon). Another way of saying it, is the difference between day and night. Just drive or walk (with eyes open) from one end to the other. No need to demonstrate here by describing plant/tree species and rock/boulder sizes and their absence along the route.

The original document says “Somersett and Del Webb Parkways” There are two Del Webb Parkways (East and West).

Somersett has never performed maintenance on DWPWest. In addition, DWPWest does not have a landscaped center divider. DWPWest has houses on it with most of the curbside landscaping the responsibility of homeowners and not any association. DWPEast has no houses on it. Big differences between the two “Del Webbs.”

The Main Thoroughfare is Somersett-DWPEast-Somersett Ridge. It is not correctly/fully described in either document.

It should be noted that the revised document says: “There are presently two entrance features at SC. There is one that is at the north east entrance on Somersett-Ridge Parkway (“NE Entrance’”) and one that is at the south west entrance off of US 40 and US 80 on Somersett-Ridge Parkway (SW Entrance)”.

That sentence contains errors: (1) north east should be spelled northeast; (2) Somersett Ridge is spelled twice with a hyphen when there is no hyphen in its legal spelling; (3) the NE Entrance is not on Somersett Ridge Parkway. It is on Somersett Parkway; (4) the SW Entrance is not off of US 40 and US 80. There is a roundabout at that location. Rather the SW Entrance is a distance from the roundabout on Somersett Ridge Parkway at the geographical entrance/exit and the convergence of the opposing two lanes of traffic.

These basic errors call into the question the validity of the document itself.

All of the, attached to the revised document, “fancy-dancy” legal wording descriptions, maps, and aerial photographs (at what cost) depicting the Maintenance Easement Area to be maintained by Somersett mean nothing to the crew workers on the ground. There are no lines on the soil that tell a worker on which side he is to mow/rake/water/clear snow and the other side where he doesn’t.

In addition to all this confusion, there is a sentence in the PUD which says:

“ALL COMMON AREAS, including pedestrian easements, streetscapes, open space, parks, “commons,” and trails WILL BE MAINTAINED BY THE SOMERSETT OWNERS ASSOCIATION (when enabling legislations is passed by the City of Reno allowing such districts.)” – emphasis added – Pay no attention to “enabling legislation” as that has already happened when the City Council approved the PUD.

At its December 14, 2015 meeting the Somersett Board agreed the maintenance of the trails within Sierra Canyon is the responsibility of Somersett (asphalt repair and patching is right now being done under the auspices of Somersett).

Somersett has yet to admit it is also responsible for all the common areas in Sierra Canyon, not just the parkway ones. Up until recently maintenance of common areas meant landscaping. Rickety walls were not on anyone’s mind, but they are there along with some man-made structures that Somersett is to maintain per the PUD.

A financial analysis needs to be made, but it appears when Somersett assumes the landscaping of all common areas in Sierra Canyon our dues to Somersett would go up a little, but go down more to Sierra Canyon.

Since there would only be one Somersett contract for common area landscaping throughout Somersett, Sierra Canyon would require some level of authority (and a monthly spending limit) over the crew when it is in Sierra Canyon. No one knows what needs to be done better than the locals. A volunteer landscaping coordinator position for liaison with Somerset would need to be established.

SC Maintenance Easement Agreement

With the proposed lawsuit against Somersett Development Company et. al. regarding SOA rockery wall defects, questions have been raised as to why rockery walls within Sierra Canyon (SC) were not included in the rockery wall assessment report performed by American Geotechnical and the subsequent lawsuit. At the Litigation Information Meeting, the SOA Attorney clearly stated that maintenance of common area rockery walls within SC were the responsibility of the SC HOA and not the SOA (this also applied to other Sub-associations as well).

However, it has been questioned as to whether or not some of the Sierra Canyon walls may actually fall under SOA responsibility based on the 4/11/2017 Maintenance Easement Agreement (MEA) between SC and the SOA. The MEA establishes an easement along the Del Webb and Somersett Parkways within SC for which the SOA has maintenance responsibility.

For those interested in reading the MEA for themselves, a copy of such may be accessed via the following link (also available under the References tab on this website):

1st Amendment to Maintenance Easement Agreement

Rockery Wall Litigation Information Meeting

Some Take-away points from the March 10th Information Meeting:

  • The American Geotechnical representative did an excellent job of explaining rockery wall construction techniques, the types of deficiencies associated therewith and how they were pervasive throughout Somersett. This along with actual pictures of some blatant Somersett Rockery Wall defects painted an effective picture to support the SOA’s litigation process against the Somersett developer and its subcontractors.
  • The American Geotechnical representative revealed that he has served as a technical expert in several other SOA Attorney (Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP) lawsuits (did not address successes or failures). Undoubtedly, as in most lawsuits, if it gets that far, Somersett Development Company et. al. will have their own experts with opposing opinions (whose expert will win out?).
  • It is not possible to determine cost estimates for future rockery wall defect remediation without more detailed inspections, but they will most likely far exceed the $2.5M currently being spent on failed wall and hillside repairs. Since short and long-term repair costs cannot currently be determined, there is no way to estimate the future cost to homeowners or determine how it will be paid for. However, of the 13.5 miles of the 325 rockery walls inspected, The American Geotechnical representative felt that only a small percentage would need near-term remediation.
  • The SOA Attorneys are banking on the six-year statute of limitations for defect claims as starting with Developer Board turnover to homeowners. That is, as opposed to the actual rockery wall substantial completion dates, which have exceeded the six-year statute (good luck with this, as it apparently has not been tested in the courts). The Developer turnover date established the basis for the December 29th, 2017 filing date, which also impacted the discovery process and the inability to obtain more data and background information on the rockery walls prior to filing.
  • No violations of required building codes or standards in effect at the time the rockery walls were constructed have been identified. In the absence of such published codes or standards, the SOA Attorneys will most likely claim that the walls were not constructed in accordance with common local building and industry practices in effect at the time, and that the defendants were aware of such and hid it. The question being what did they know and when did they know it?
  • Current Law prohibits recovery of legal fees in construction defect claims. However, the SOA attorney assured Association members that they will be looking out for the SOA’s best interests (i.e., as opposed to their own pocketbook) and would recommend terminating the lawsuit if it did not make sense to move forward. (Note: in the Attorney litigation letter to homeowners, they estimated $100K – $300K in legal fees and $100K – $250K in testing costs or $200K – $550K total over a 2-4-year period).
  • Recovery amount will most likely be limited to what is available from defendant’s insurance policies, yet to be determined.
  • Many inquired about potential rockery wall deficiencies on their property, marketability impact and related real estate disclosures. Bottom line – you are on your own here.
  • The lawsuit does not include any common area walls within the Sierra Canyon, The Vue and Villages sub-associations.
  • There was no strong reasoning put forth to indicate that the SOA would prevail in winning the lawsuit, basically a crap shoot at this time.
  • No official response had yet been received from the defendants refuting the SOA’s construction defect claim (Per NRS statutes, the defendants have 90 days from the Notice of Claim filing date to provide their response, after which the SOA has 30 days to provide this response to Association members, given the December 29th filing date it does not appear that this response will be made available prior to the March 28th ballot submittal deadline).

Herein lies the dilemma for Association members, even if there is a low probability for success, is the reward worth the cost of moving forward? Assuming the high end legal cost estimate of $550K, this would equate to approximately $176/unit owner, not a huge amount. Estimating future rockery wall repair/replacement costs at this time is problematic. However, if one assumes that these costs will “far exceed” the $2.5M currently being spent, say $8M as an example, the cost would equate to approximately $2600/unit owner (one can do their own math by dividing their assumed values by Somersett’s 3124-unit owners).

The bottom line opinion here is that: given the potential for future failures and SOA liability issues, it makes sense for homeowners to RATIFY the litigation. If future discovery points to not pursuing the litigation, the SOA BOD can then act accordingly.

Comments/Opinions anyone?

Rockery Wall Litigation Letter

In the Attorney letter to Somersett Owners regarding the Rockery Wall litigation, the SOA Attorney stated:

“The Association could lose its rights to pursue the developer and/or third parties responsible for construction deficiencies as certain parties have suggested that the statutes of repose and statutes of limitations may lapse, or have already lapsed, which would preclude the Association from pursuing the developer and/or third parties. If these statutes lapse or have lapsed, without a suit being filed, the Association will have no recourse against any third parties for the construction defects in the Walls”

Not a very definitive statement on time limitations  –  especially given that the current Nevada Statute (NRS 11.202) establishes a time limitation for initiating a construction defect claim as no more than six years from substantial completion of the project. There appears to be some uncertainty on the part of the SOA Attorney as to what limitations may or may not apply, hence his statement of “may lapse, or have already lapsed“, which raises the following questions:

  • Does NRS 11.202 apply to the SOA claim, if so what is the established “substantial completion” date that would apply?
  • Is there some other Nevada statute of repose or limitation that would supersede NRS 11.202, as the six-year limitation has most likely already lapsed?

The Attorney letter also mentioned the Chapter 40 Notice of Claims delivered to the developer and related parties. Per NRS 40.6472, the developer has 90 days to provide a written response to the SOA Claim, which must then be provided to all Association members within 30 days of receipt. In this regard:

  • Has the SOA received such a response, will it be made available for review by Association members prior to the March 28th ballot submittal date?

The Attorney letter also stated, with reference to NRS 116.31088, “that the Association needs to make a good faith attempt to have a majority of the members of the association ratify such lawsuit within 90 days after the filing thereof”. Since the lawsuit filing date was December 29th, this is the presumed basis for the March 28th submittal date. However, not addressed was the following:

  • If the required number of ballots to either Ratify or Not Ratify pursuit of the lawsuit is not received by the March 28th date, what will be the recourse?

Hopefully the above questions will be addressed at the March 10th Information Meeting.

Rockery Wall Litigation Status

By now all Somersett owners have received a mail packet from the Somersett Owners Association (SOA) providing information on the proposed lawsuit against Somersett Development Company, et. al. regarding SOA Common Area rockery wall defects.

In the SOA’s Attorney letter contained therein, the stated benefit for filing the case “is the recovery of funds to correct construction deficiencies in the Walls at the Association”. However, the Attorney letter does not detail the specific allegations against the defendants. A summary of these allegations is contained in SU’s previous post of February 5th entitled “Rockery Wall Defect Litigation”, or for the more legal minded, copies of the entire “Complaint for Damages” by the SOA and the “Notice of Claims” against the Defendants, as filed with the 2nd Judicial Court of Nevada, may be accessed via the following links:

Case No. CV17-02427 Complaint for Damages

NRS Chapter 40 Notice of Claims

Both the Attorney letter and the Court filing documents reference a rockery wall inspection report performed under contract to the SOA by American Geotechnical, Inc. as one of the bases for filing of the lawsuit. American Geotechnical states that “Our preliminary evaluation indicates that each of the rockery walls observed has pervasive construction related defects”. This report may be viewed in its entirety on the SOA website (www.soa.net) under the SOA/SOA Documents/Rockery Wall Evaluation links (requires login), or on this website via the following:

American Geotechnical Report

The American Geotechnical report outlines deficiencies observed in each of the SOA’s Common Area rockery walls. A series of maps contained in Appendix A to the report shows the location of each Common Area rockery wall along with size parameters and any observed deficiencies with the following descriptors:

A = Height of Wall
B = Face Batter (receding slope of wall face)
C = Inadequacy of chinking rock and/or excessive voids (voids in excess of 6 inches without filler rocks)
D = Drain rock and/or retained soil spilling through voids
E = Horizontal distance between tiers (distance between multi-tiered rockery walls)
F = Poor rock placement or shape of individual rocks
L = Lineal footage of wall

Owners interested in the data for rockery walls adjacent to their properties may do so by accessing the appropriate report map.

The Attorney letter estimates that legal fees and associated expert costs will be between $200K and $550K over a 2 to 4-year period. At $550K this would equate to approximately $176/owner. A small price to pay if successful. This given the $2.5M currently being spent by the SOA and potential high costs for future rockery wall replacement, repair or maintenance. Statute of limitations and what constitutes a construction defect under NRS Chapter 40 are likely to be argued.

To explain the above, an Owner Informational Meeting has been scheduled for Saturday March 10th at The Club at Town Center. If possible, owners are encouraged to attend this meeting to obtain clarifications on the lawsuit and answer any questions they may have prior to submitting their ballots to either RATIFY or NOT TO RATIFY filing of the lawsuit

Opinions welcomed!

Note that the above referenced documents were obtained as public records within the Washoe County District Court System under Case No. CV17-02427.

Sierra Canyon Dehumidifier Litigation Status

Submitted by Joe Bower, Sierra Canyon Homeowner

The District Court Judge’s final ruling regarding the Sierra Canyon Dehumidifier Case was an order granting Pulte’s (PN II) motion to dismiss, which was done without prejudice. A copy of the order of dismissal may be accessed via the following link:

Case No. CV17-01607 Order Granting Motion to Dismiss

The attorney for Sierra Canyon subsequently appealed the Case to the Supreme Court where the Judge has sent it to the Alternative Dispute Resolution Program for possible resolution instead of hearing it before the Court.