Soils swell, wreck homes:
Toll growing despite suits

By Steve Raabe
Denver Post Business Writer

Anticipating retirement, Pansy and Don Chinn invested their life saving three years ago in comfortable, two-story Ken Caryl Ranch home.

As it turned out, however, only one thing went according to plan: depletion of their savings.

The rest has been what the Chinns call a disaster. Their retirement has been postponed out of financial necessity. Their home has devolved from comfortable to nearly unlivable.

“This has just been one terrible experience after another,” Pansy Chinn said.

Thanks to Colorado’s geologic legacy, the Chinns are fighting a battle against swelling soils.

It’s one of the nastiest and most litigious aspects of growth in Colorado. Up and down and the Front Range, new homes are being built atop dirt that has a proclivity to expand, pushing floors, walls and even concrete foundations out of its way with the unrelenting force of a slow-moving freight train.

Thousands of homeowners have gone to court against builders and insurance companies in recent years. In most of the cases, the builders have settled with admitting wrongdoing. In one notable instance from Douglas County, a jury found the developer of Highlands Ranch to have been negligent.

Some builders say the lawsuits are adding unnecessary costs to the price of buying a home.

Yet even after a half-dozen high profile lawsuits over expansive soils involving 14,500 homes, more homeowners every day are finding symptoms of trouble.

Although Colorado doesn’t claim the nation’s worst geologic conditions – Wyoming and the Dakotas have more expansive soils – Colorado ranks among the top, along with Texas and California, as states with bad soils and large amounts of real estate development atop the swelling dirt, said David Noe of the Colorado Geological Survey.

Expansive soils cause at least $26 million in damages a year statewide, Noe said, and about $4 billion nationally.

But the emotional toll on homeowners can be even worse, leaving them unsure if their houses are safe and wondering if they can find legal remedies to repair the damage.

At the Chinn home, cracks permeate interior walls. The driveway, garage floor and porches have shifted and heaved. Brick veneer on the home’s exterior shows cracks and gaps.

Windows whose frames have been bent out of plumb can no longer be opened or closed by Pansy Chinn – she must ask her husband for help.

“It’s like every day there’s another crack,” she said.

Don Chinn, a 72-year-old electrician, had hoped to be retired by now. But with the Chinns’ lawsuit against local builder Crestwood Homes pending and with no guarantee of a settlement that will pay to repair the house, he’s been forced to stay on the job.

The Chinns’ attorneys and engineers estimate that the home, built and purchased in 1994 for $172,900, may require as much as $209,000 to repair.

In Highlands Ranch, 7 miles east of the Chinns’ home, United Airlines customer service representative John Duffy shakes his head as he points out a half-inch crack in his family-room wall.

Like dozens of other cracks in his home, this one started as a hairline fissure, then grew steadily until Duffy has had to place 2-inch wrapping tape over it to prevent outside air from infiltrating.

Wood moldings have detached from kitchen floors, ceramic tiles have cracked and broken, and a 2-inch gap has opened between his driveway and garage floor.

“Welcome to my nightmare.” Duffy said.

He bought the newly build home in 1993 for $234,000 from Denver homebuilder Writer Corp. Duffy’s attorney estimates repair costs to be $135,000.

Expansive soil has pressed up on the concrete piers under the home’s foundation, causing foundation walls to shift. Among other problems, the movement has warped door frames.

“My 7-year-old son has never had the privilege of being able to close his bedroom door,” Duffy said.

“It’s hard to describe this feeling,” he said. “Next to losing a loved one, having the biggest investment of my life threatened like this is the worst thing that could happen to me.”

Writer President Ron Benkert said the company is “diligently talking steps to be responsive” to homeowners with damage caused by soils.

Problems in Duffy’s home are typical of those that occur when claylike minerals absorb water and expand.

Much of Colorado’s Front Range sits atop a potential minefield of soils and rocks that can expand. Until the 1960’s, the problem was little known because most of central Denver is built on sandy soils that don’t swell.

But urban growth pushed development to outlying areas, especially in southern, western and northern suburbs where soils and bedrock contain an expanding clay mineral known as montmorillinite, often misidentified as bentonite.

When suburban homeowners begin irrigating their formerly arid property, the underlying soils expand.

In rare, severe cases, swelling soils can increase in mass by up to 50 percent. Even in soils that swell 5 percent or less – a more common ration in Denver suburbs the expansion can exert pressure of 20,000 pounds per square foot.

The geologic phenomenon has transformed the career of Scott Sullan, once a low-profile lawyer who specialized in construction cases, now a nationally prominent litigator who is scourge of the homebuilding industry .

Sullan took his first expansive-soils case in 1990 when 13 Highlands Ranch homeowners sued builder Wood Bros. He won a $1.45 million settlement for his clients and has worked exclusively in expansive-soils case ever since.

He speaks passionately about his roles as an advocate for people with broken homes.

“It’s not just a sticks and mortar issue,” Sullan said. “They feel trapped in their homes, they can’t sell them. Sometimes they can’t live in them.

“Builders would disagree, of course, but I feel like we’re on the right side of a good fight,” he said. “Our clients don’t want a bunch of money in their pockets. They just want to get their homes fixed.”

Sullan has filed lawsuits against the nation’s largest homebuilder, Centex; Colorado’s largest builder, Richmond Homes; and other major firms including U.S. Home, Falcon, Ryland, Village and Merit.

Most of the suits have been settled before trial, with provisions that call for the builder or insurance company to pay most of the cost of basement-floor replacements after homeowners make co-payments of varying sizes.

One landmark case, a class action suit against Highlands Ranch developer Mission Viejo Co., went to trial last year. A Douglas County jury found that Mission Viejo was negligent in building homes on expansive soils without installing safeguards such as wood basement floors designed to be more resistant to swelling than concrete slabs.

The homeowners and Mission Viejo subsequently reached a settlement before a second phase to establish damage amounts in the case.

In four major class action suits representing about 14,000 Colorado homes, a total of $4 million in attorney fees has been awarded to Sullan’s Englewood-based law firm, Vanatta, Sullan, Sandgrund & Sullan.

The 44-year old Sullan carries a close rapport with his clients, who are vocal in their admiration of the attorney.

Builders, on the other hand, privately condemn his aggressive litigation of soils cases and his criticism of the homebuilding industry’s construction practices.

Larry Larsen, president of the Home Builders Association of Metro Denver, would not comment on Sullan’s cases but said lawsuits have been counterproductive to builders and homeowners.

Builders who have lost cases or entered into costly settlements have forced the industry to make expensive changes in their building practices that often are unnecessary and add costs that are passed on to buyers, he said.

“Builders have gone overboard and overcorrected,” he said. The litigation has proven to be a disservice to a lot of people. The unfortunate part is that the cost of housing has increased more than it should.”

For example, Sullan contends that in cases where soils have even he slightest potential for swelling, builders should routinely install basement wood floors that are suspended 18 inches above the ground – a more expensive technique than pouring concrete flooring directly onto the soil.

Larsen said that’s and unneeded expense in many cases. He said builders should heed soils engineering reports and take remedial construction steps where they are deemed necessary on an individual basis.

Centex Homes, a current defendant in a suit brought by Sullan, said in a statement that Centex buyers are informed in writing about soils tests on their lots and are advised of problems that could occur.

Not good enough, Sullan said.

“The answer to this is not ‘buyer beware,’” he said. “People will never have the sophistication to understand engineering reports and realize all the problems that could happen.

“The answer is for builders to build habitable houses.”