NDA Newsflash - 1/4 mile equals false assurance

Informative Facts:
Disclosure Facts, Fallacies and Future Lawsuits
Relax! According to the report, the property is not within 1/4 mile of a landslide zone.

Newsletter
By Patrick McClellan, Registered Geologist
Realtor® News -- January 2009

Previously in this space a vendor [BHGLAAR Realtor® News] promoted its brand of hazard disclosure product, announcing that only its report discloses if a property is within 1/4 mile of a regulatory landslide hazard zone.

Indeed, that company stands alone. Natural hazards do not respect zone "boundaries" whether they are scientifically established by a regulatory agency -- or gainfully invented by a disclosure company. Disclosure providers generally will not risk an agent's reputation by suggesting to a buyer that landslide danger stops at an imaginary line, an arbitrary distance from an official zone boundary.

A regulatory hazard zone represents the informed opinion of scientific experts. They uniquely understand the nature of the hazard and its typical behavior. Even so, those scientists are the first to admit that there is uncertainty in their hazard boundary lines, and that even they cannot accurately predict a hazard's reach without a costly site-specific investigation.

The fallacy of "arbitrary disclosure" becomes obvious when buyers discover that "long-runout" landslides have destroyed lives and property far beyond the distance they understood was safe.

Officials fear the worst this winter after Southern California's recent firestorms. Scorched slopes and torrential rains can create the "perfect storm" for a kind of long-runout landslide called debris flows. No soil-covered hillside is immune from them, and they are especially abundant in burn areas even under normal rainfall.

Runout distances exceeding one mile are not uncommon. In 1980 a deadly debris avalanche flowed 13 miles during the eruption of Washington's Mount St. Helens. And in 1985 a debris flow traveled 3 miles across the valley floor from the base of California's Mount Shasta, without an eruption!

The noted 2005 La Conchita landslide re-activated an earlier landslide from 1995 anextended its length to approximately 1,330 feet (1/4 mile equals 1,320 feet). Neither landslide was earthquake-triggered -- the type which the nearby hazard zone delineated. Both were the random result of the local landscape, soil, and bedrock, and intense El Nino rainstorms. It is mere happenstance that these "storm-triggered" landslides did not travel farther.

So, should the La Conchita homeowner disclose that the property is within 1/4 mile of a landslide zone, or would 3/8 or 1/2 mile be a safer gamble? Should all zones everywhere be expanded by that same arbitrary distance just for good measure? Since land doesn't slide uphill, should no extra distance be disclosed above the zone, so that uphill properties aren't needlessly "red-flagged"? And when the next landslide violates the currently fashionable
distance, will the report's "added value" need more distance added to it?

There is no "safe distance" downstream, downwind or downslope from a hazard zone. If there were, hazard scientists -- the experts who should know -- would make bigger zones. It's that simple.

Disclosing that a parcel is "within 1/4 mile of a landslide zone" and ignoring the zone beyond that distance, tells the buyer "the coast is clear" on the other side of that line. It's false assurance.

It introduces arbitrary -- and non-expert -- judgment that contaminates the official record for the disclosure, and it undermines the statutory authority upon which a legal defense will rest. To do so, knowing there is no "sound scientific basis that substantiates delineation of the [expanded] zone" (California Geological Survey zoning criteria) opens the seller and the agent to serious potential lawsuits.

Disclosure companies providea valuable real estate service by aggregating, and accurately reporting, official hazard zone information. But let's be honest -- they don't create the hazard zones, they only read the maps. They do not practice geology (although some disclosure companies are licensed to do so). If leading research institutions cannot predict how far the land will slide, then certainly a map-reader's unschooled opinion will offer little defense in a courtroom.

The best protection against inaccurate or misleading natural hazard disclosure is to follow the law: rely on the exact hazard zone boundary as precisely drawn by the scientific experts and officially published by a regulatory agency -- and then report whether the parcel boundary is "IN" or "NOT IN" the zone.

When we turn our back on science, we do so at everyone's peril.

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This article is presented by Affiliate Member, Jon Wax, Regional Account Executive for First American NHD and JCP-LGS Disclosures.com available at (800) 527-0027. Mr. McClellan is a professional geologist licensed to practice in California since 1984 (RG #3854) and a former research geologist with the U.S. Geological Survey.