New York Wetlands Legislation and the Costs of Sinking Homes in Amherst, NY

This following discussion highlights the cost of building homes in wetlands as experienced with the �sinking homes� of Amherst, Erie County, NY. This is an excerpt from public comments submitted on April 16, 2003, by the State of New York for US EPA Docket ID No. 02-2002-0050. These comments were in response to a public notice by the US Army Corps of Engineers and US Environmental Protection Agency on the appropriate scope of the term �waters of the United States� under the Clean Water Act.

URL Source: http://www.riverkeeper.org/document.php/%20125/NY_Atty_Gen_Com.doc

�Costs Associated With Structural Damage To Homes Built On Unstable Soils�

This last example provides information about costs sustained by homeowners in Amherst, New York whose homes were constructed on unstable soils, and explains how wetlands protection is important to prevent such scenarios in the future and to minimize further damage in Amherst.

Amherst, a major suburb of Buffalo, NY has experienced widespread structural damage to homes and garages due to differential settling of foundations built on unstable soils. Unstable soils include both hydric and compressible soils. A majority of the soils located in the town of Amherst were deposited by glacial lake waters that formed deposits of layered clay, silt, and sand-- according to the �Soil Survey of Erie County, NY�; US Department of Agriculture Soil Conservation Service, 1986, pg.4-11.

Following the retreat of the glaciers, much of the Amherst area became wetlands composed of unstable soils. These unstable soil types consist of hydric soils and easily compressible soils that are present in over 15,000 acres of middle and Northern Amherst. (Wetlands in general are areas characterized by: hydric and hystic soils, hydrophytic vegetation, and hydrologic conditions).

According to the 1986 Erie County soil survey (pg. 172), compressible soils have relatively low strengths and become increasingly unstable with changes in water saturation. Given these soil properties, drastic fluctuations in water saturation are likely to compromise the structural stability of homes built there unless the construction problem is properly dealt with by the engineer.

Since the late 1960s, the town of Amherst has become increasingly developed and is now the fourth largest community in upstate New York, containing over 33,000 owner-occupied homes. [Source: Dolan, Schulman, and Williams, �Sinking Homes Part II.� The Buffalo News. 10 March 2003.] This large increase in population occupied many former wetlands and brought with it major additions to the town�s infrastructure including better drainage systems such as sewers, underground drainage pipes, and culverts. This, along with the increase in impermeable surfaces such as roads and parking lots, and the large number of sump pumps in residential basements throughout the town, put limits on the amount of water that is able to infiltrate the deeper soil by diverting it to creeks that eventually flow to the Niagara River.

Together with recent drought conditions in the area, there is a net drawdown of the water resulting in the accelerated drying of subsurface soils, which in turn increases soil instability, thus leading to soil subsidence or compression. Since 1996 there have been 501 reports of foundation problems by Amherst residents. Costs include more than $2.2 million dollars spent on foundation repairs and another $2.5 million needed for outstanding repairs. (Source: �Sinking Homes Part I.� The Buffalo News. 9 March 2003.)

That is a total of $4.7 million in damages for only 501 houses. Considering that there are 33,000 homes in Amherst and a large portion of damages have yet to be reported or may happen in the future, there is the potential for a much larger cost to the residents. If the problem continues to worsen, property values may suffer and create an even greater strain on the community.

Protection of wetlands in Amherst is necessary to prevent greater damage. As stated above, wetlands act as a natural sponge because of their ability to absorb and store large quantities of water, however they also release subsurface water into the surrounding soils, thus replenishing some of the water lost due to increased surface runoff.

�Isolated� wetlands play a large role in providing a source of water to soils that may otherwise experience accelerated drying, thus acting as a kind of buffer by absorbing large amounts of water during times of floods and slowly releasing water to the surrounding drier areas during times of low precipitation. This combats differential settling by preventing an influx of large quantities of water into the clayey soils beneath residential areas and by recharging nearby drier soils during times of drought. Without the mitigating affects that the remaining �isolated wetlands� are having on differential settling, the rate and magnitude of damages to residential houses in the town of Amherst would be much higher than presently observed.

UPDATE: The Buffalo News, December 22, 2003: Thomas Ketchum, Commissioner of Building for the Town of Amherst wrote a letter to the editor stating that is in his report to the State Fire Prevention and Building Code Council, he wrote the following, �Based upon foundation repair permits that we have issued, complaints received alleging problems, and many inquiries, the foundation related problems have affected over 1,000 homes.� Approximately three-quarters of the foundation problems are related to lateral earth pressure problems, not sinking problems, he added. Furthermore, the foundation problems range from minor problems to major problems with the average cost of repairs based on permits issued this year in Amherst to be $10,600. �Town of Amherst officials are quite aware that we have a serious problem that requires rational solutions on many levels�, according to Ketchum.

It�s clearly evident that trying to use the judicial system to help people with sinking and cracking homes in Amherst works to no avail. Justice Patrick H. NeMoyer ruled for a second time that Amherst residents cannot sue Town officials for damages related to sinking homes.

Think about this - if our Waste Water Treatment plant were to spill thousands of gallons of untreated raw sewage into Ellicott Creek, the Town would inform us not to go in the Creek or swallow any water from this waterway. The Town owns the plant and would be responsible if people became ill.

The Town was going to buy the land where the shooting range is on Maple and use it for a golfing tee practice spot. They decided not to go through with the deal because the ground was contaminated with lead. We turned down the deal for the health and safety of our kids and families in general.

Back in the early 60�s the Federal government informed Town of Amherst officials that certain areas in Amherst were unsuitable for development because of unstable soil. The Town didn�t feel it was their duty to inform people who were having homes built in these areas of the danger. The Town was informed, and knew, that certain pieces of land should not be built on as early as 1962, but the greed of the people who ran the Town made the decision to let their neighbors sink or swim. No one who knew about this serious problem ever informed the public. Why should they? The color of green with the faces of dead presidents kept their mouths shut so their kids could go to college and not miss all the good things money can buy - something many of the young people who live in those 1000 houses that are sinking and cracked, may never enjoy.

Our local government can�t help, the State won�t help and our Congressman, Tom Reynolds after two years still has done nothing. It is clear you have to help yourselves by being more of a force. Load up some buses and go to Washington DC and demand help. Let Congressman Reynolds know that no votes will be coming from this group of 1000 homes. Write to friends and tell them of the problems in buying a home in Amherst. Use radio spots to get your word out about how you been left to rot away. Use your minds to find legal ways to force the government to help you financially now!

� Copyright 2003 by Speakupwny.com - URL Source: http://www.speakupwny.com/article_1221.shtml

You have to admire those who spoke in favor of the Amherst residential building moratorium, and their attendee supporters. They knew long ago that there was a majority of Board members who would side with the developers and deny moratorium approval.

Yet they came, well organized, spoke professionally, and couldn�t have made their focus point any clearer - �stop building until the Army Corps of Engineers completes their soil study. Stop building until cause can be determined and remedy instated so that no one else will experience the problems we are incurring.

They presented data and pictures to illustrate the severity of the structural damages and repair costs. They presented data and pictures to illustrate the flooding and drainage issues they experience. They spoke intelligently about soils, desiccation of wetlands and resulting affects on hydrology and soil shifting, and the fact that 35 years ago town board members and builders were warned against building on theses soils.

And this board will repeat history by allowing builders to have they�re way again. And all they were asking for was 6 lousy months - so others would not experience what they were going through. No self-serving agendas. How unique in today�s �ME� generation world.

However, builder and board members disregarded their altruistic intentions and made it all about �what�s your point, the moratorium will not correct your problems.�

In so many words, they told the residents favoring the moratorium to shut up, that they were devaluing the other properties in town, stigmatizing the town name, impacting their livelihood, impacting the economy of the region by costing retail jobs, undercutting sales tax, and jeopardizing the town�s bond rating. One builder trade person went so far as to mention 9-11.

One last time for those who have a hard time understanding why people supported moratorium resolution - they acted to delay building in areas where it was well documented that residents were suffering structural damage and/or flooding and drainage issues, so that others (like their friends, neighbors, and future homebuyers) would not experience the suffering they were incurring.

The following are excerpts from presentations made by individuals favoring the moratorium:

* Problem cause uncertain - wait for completion of Army Corps of Engineers soil study

* No economic argument supercedes public safety. We understand a moratorium will do nothing for those homeowners already experiencing structural damage, but it could prevent the same type damage results from building homes in the designated moratorium areas. We are not only thinking of ourselves, but for our future neighbors. (This same theme was mentioned several times)

* Chastised Board for considering town revenues over concerns and damages sustained by its residents.

* Suspend further building in the affected areas until cause is determined. Building is allowed in areas other than Willow Ridge, Audubon, and the Millersport - Transit areas.

* Structural damage and flooding and drainage problems will be worsened with further development. Built my house in 79. In 82, it was already 6� off-center on the foundation.

* Flooding and drainage issues are occurring in Ransom Oaks. Are you willing to assure homeowners they will be spared from further damage?

* Its d�j� vu all over again. 20 years ago, the sitting board and builders were told there were areas in town with low bearing strength soils and building on them should be avoided. We have the same situation now and you are ready to become the next board to be recognized for not reacting appropriately. How can you be insensitive and ignore the wishes of your constituents.

* Amherst is known for catering to the developers. Years ago this town sought exemption from federal regulations to allow building to take place in the flood plains.

* The moratorium will not stigmatize the town. Rather, it will be an example of smart growth.

* Builders tonight tell us that by they�re following the SEQRA process our problems will be eliminated. They have the means and the technology to build successfully. Well, I live in the affected area and my house is only six months old, and I have a crack in my basement wall. I�M not anti development. The problem was brought to us.

* The town was warned about silt-clay soils back in the 50�s. Other states have settled sinking home claims. What are you doing for us?

* Several individuals residing in the impact areas brought and showed pictures of their damaged homes and the flooding and drainage issues they experience.

* Several individuals residing in the impact areas related the cost estimates to repair the damage to their homes. Sometimes the repair costs equaled the purchasing price of their homes. Considering the cause has yet to be determined, why should they invest heavily into a correction project that may not be successful?

* Several individuals declared they did not have repair funds. They feared foreclosure.

* Under the current circumstances, the courts would consider lawsuits instated by the developers frivolous.

* Lives in a flood plain. Showed pictures that depicted severe flooding. Declares that flood plains and drainage issues are inseparable.

* Like all business enterprises, developers and builders have the constitutional right to manufacture, sell, and profit from a product. And, just like all other business entities selling a product, they have an obligation to manufacture a product that will not harm the consumer.

* As lead agents for the development that occurs in their town, Town Boards are responsible for protecting environment and resident best interests. They do this through SEQRA (State Environmental Quality Review Act) - a process that identifies significant adverse impacts and mitigates said impacts if practicable, and to the extent practicable.

* Builders tell us they can build on any type soils and under any condition. Let builders put their money and warrantees where their mouths are. Mandate they openly inform prospective buyers as to the soil conditions his home will be built on, extend the six-year state mandated protection warrantee, and establish a compensatory fund should further building adversely impact current of future homeowners.

* Resident purchased his home 3 years ago. Has $30,000 to make the repairs suggested. Yet is waiting for the ACOE soil study results, as no one knows problem cause or definitive solution. Suggests town waits until the ACOE study is completed. Others shouldn�t have to suffer same experience because we couldn�t take a 6-month time out and form a task team to seek resolution.

* Your primary responsibility is to the resident. Jane Woodward wrote me a letter and said I should thank the Town Board for my beautiful home. Thank you. For 50% of the people on my street are suffering the same substantial damage as I am. On their behalf, I thank you. People in my area are selling their homes for $100,000 under market value. Thank you. For you�re caring more for the builder�s economic situation over resident problems, thank you.

I said please, I said thank you, and now goodbye to your beautiful futures. Voters will not forgive, voters will not forget. URL Source: http://www.lancasterreview.com/page67.html

It Is Time to Take Action in Amherst

Learn About the Costs of Building Homes in Wetlands And Unstable Soils