News - Reduce Flooding

Perry Contractors Now Focusing on Finish Work for Detention Ponds

Perry Homes’ current contractors have excavated 3X more detention pond volume in ten weeks than the previous contractors did in virtually two years. During this past week, they finished excavating three ponds on the northern section of Woodridge Village. Together, they comprise 77% of the total detention volume for the whole site.

Excavation Done, but Finish Work Remains

That doesn’t mean they’re totally done with the ponds. Recent aerial photos show that they still have much finish work to do. That includes:

Shaping the sides
Creating backslope swales
Installing pipes to funnel water from the swales into the ponds and channels
Ensuring water can flow out of Adams Oaks in Porter on the west side of the subdivision into Taylor Gully as it previously did
Creating concrete “pilot channels” in the center of the ponds and larger channels
Planting grass along the sides of the slopes to reduce erosion
Installing outflow control in several places to hold back floodwaters
Building maintenance roads around the ponds

Elm Grove resident Jeff Miller, who monitors the progress of construction daily, says crews are already hard at work on many of those tasks.

Ponds NOT Expanded Beyond Initial Plans

Miller has compared the width and depth of ponds to the initial plans and verified that the ponds are being built to original specifications. Since the ponds were designed to meet pre-Atlas 14 rainfall requirements, that means the site will still hold 30-40% less runoff than needed to meet current regulations.

Still, surrounding residents in Porter, North Kingwood Forest and Elm Grove who flooded twice last year will find three large ponds on the northern section a welcome addition. They provide some measure of extra protection. Residents will have four times more upstream detention volume than they had during Imelda.

Racing Against Risk

With the peak of hurricane season now less than two months away, Perry Homes is in a race against risk. The company may regret the six months of virtual inactivity between the completion of pond S2 and the start of work on ponds N1, N2, and N3 in early April.

The faster pace of current construction puts pressure on Harris County and the City of Houston to complete an offer if an offer will be made. Elm Grove residents lobbied the City and County to purchase the property and build a regional flood detention facility. They center would also help protect downstream residents on the East Fork and Lake Houston.

However, at a Kingwood Town Hall Meeting in February, Mayor Pro Tem Dave Martin announced that the City would not participate in a deal. He said it was the County’s responsibility.

In April, the County announced that it would consider purchasing the land if the City contributed land in lieu of cash to cover half the purchase price.

Then in May, the County increased its demands. The County now wants the City to contribute land in lieu of cash to cover half the purchase AND construction costs for creating additional detention.

County and City Clamp Down on Communications

Since then, the County has clamped down on communications regarding this subject. Rumors suggest that all parties are still trying to make a deal happen. But the County has denied all FOIA requests and referred them to the Texas Attorney General for a ruling on their denials. That often happens when negotiations are in progress, according to a knowledgeable source.

What Happens Next?

At the contractor’s current rate of progress, it’s entirely possible that contractors will complete all work on detention ponds in July.

The City and County blew through a May 15 deadline that Perry put on the deal. But a “For Sale” sign at the Woodland Hills entrance remains on the property.

With approximately $14 million dollars invested in the property, with hurricane season here, with lawsuits pending, and knowing that the amount of detention is insufficient to hold a 100-year rain, Kathy Perry must be sweating bombshells.

Ms. Perry may be hoping for a City/County offer, but she can’t be counting on one. If she were, she could have sold the dirt coming out of those detention ponds. Instead, however, she’s building up land elsewhere on the site to keep her options open and develop the site if a deal falls through.

That dirt will have to be moved again at taxpayer expense if the county builds additional detention ponds.

Pictures of Site as of 6/19/2020

Here’s what the site looked like as of 6/19/2020.

*Looking NW from over Taylor Gully toward Pond N2, the largest on the property.*

*The connecting channel between N1 at the top of the frame and N2 along the western edge of the property has been excavated.* *Note the pilot channel that contractors have started* *in the distance.*

At Mace Street in Porter, contractors created a concrete face for the twin culverts on the upstream side, but not yet on the downstream side. Note the earthen dam holding water back while contractors complete the pilot channel running off the bottom of the frame.

*Above Mace Street, contractors are still putting in pipes between the channel and backslope swales.*

*The Webb street entrance to the site has been removed to connect N1 (out of frame on the top) with N2 (out of frame on the lower left).*

*Looking South at N3, which runs down the eastern edge of the property.*

*More pipes are being put in to channel water from backslope swales to the pond so water won’t erode the face of the pond. Not the rills already cut in the dirt.*

*Looking SE. The southern half of N3 where it connects with Taylor Gully in the upper right.*

*N3’s connection to Taylor Gully is now wide open. It’s not clear how this connection will be completed to release the water at a slow controlled rate.*

*The two culverts under the bridge over Taylor Gully should slow the water from N2 (upper right) and N1 (out of frame) down.*

Need for Grass if Deal Not Reached Quickly

Note how the grass on the southern side of the gully has all died. That raises a question. If Perry, the City and County do not complete a purchase agreement soon, will Perry plant grass on the northern section to slow runoff. Right now, it’s all hard-packed dirt.

*Most of northern section is hard packed dirt which increases runoff rate.*

Planting grass over an area this large would be a big investment and might get in the way of construction if Perry decides to develop the land. But it will reduce flood and legal risks.

Posted by Bob Rehak on 6/20/2020

726 Days after Hurricane Harvey and 275 after Imelda

Elm Grove Lawsuit Names Perry, Concourse Development As New Defendants; Trial Delayed

Attorneys for owners of 304 flooded homes in Elm Grove have named Perry Homes, LLC and Concourse Development, LLC as additional defendants in their lawsuit. Plaintiff’s lawyers filed their 287-page, sixth amended petition on 6/16/2020. Today, they also filed a request for a new trial date of 3/1/2021.

For the complete 287-page filing, click here. For a summary, read below.

New Information May Tie Perry, Concourse Directly to Floods

Based on allegations made in the lawsuit, it appears that attorneys may now have evidence that Concourse (the developer of Woodridge Forest) was also part owner of Woodridge Village. Wording within the allegations also suggests that Perry Homes was directly involved in the actions of its subsidiaries PSWA and Figure Four Partners, which in turn were telling contractors what to do and not to do.

This is potentially good news for plaintiffs because companies, such as PSWA and Figure Four are only subsidiaries of Perry. Such subsidiaries often act as shell companies that shield the parent company from liability. With few assets, the subsidiaries simply declare bankruptcy if they lose a large lawsuit. Then, life goes on as normal for the parent company. However…

Both Perry Homes and Concourse Development have substantial assets. Perry claims to be close to a billion dollar company.

Concourse developed the adjacent Woodridge Forest, where Perry also built homes. It bought Woodridge Village land and then held it for six days before selling it to Perry. Evidently, they didn’t sell their entire interest. Before the May 7th flood, Concourse bragged about its role in Woodridge Village. But after the flood, the company removed all mentions of Woodridge from its web site.

*Screen Capture from Concourse Development website before lawsuits filed.*

Allegations in Sixth Amended Petition

The big news: The plaintiff’s sixth amended petition now names Perry and Concourse as additional defendants. Previous petitions named only Perry subsidiaries, contractors and LJA Engineering.

In the new petition, defendants allege that:

LJA used an outdated version of Montgomery County’s Drainage Criteria manual when it designed drainage for Woodridge Village.
Figure Four failed to properly review the plans, catch the error, oversee LJA, or make construction decisions.
As a group, Figure Four, PSWA, Perry Homes and Concourse (referred to as “Developer Defendants” in the amended petition) hired contractors and directed them to fill in existing creeks and drainage channels, and to remove a levee or berm on the south side of Taylor Gully that had previously protected Elm Grove. The existence of this berm was not mentioned in LJA’s engineering plans, they say.
Even after the first flood on May 7th, when developers were aware of the danger, they failed to take corrective actions that would have prevented the September 19th flood.
As a direct consequence of their actions and inactions, the developers flooded hundreds of homes in Elm Grove.
The inactions of Perry and Concourse following the May 7th flood justify punitive damages.

Key Elements of Agreement Between Developers

The petition also claims that the four developer defendants entered into an agreement that called for them to:

Make exhaustive or continuous on-site inspections to check the quality and quantity of work
Be responsible for the techniques and sequences of construction, and safety precautions
Take responsibility AND liability for the contractors’ failure to construct the project in accordance with the contract documents.

However, the plaintiffs also accuse the developer defendants (through negligence or omissions) of:

Failing to make exhaustive or continuous on-site inspections to check the quality or quantity of the work
Failing to properly monitor the techniques and sequences of construction or the safety precautions to ensure Elm Grove would not flood during construction
Failing to ensure the contractors performed the construction work in accordance with the contract documents
Failing to incorporate drainage studies prior to initiating construction on the Development
Failing to properly direct and supervise the means, methods, and techniques of the sequence in which the contractors performed the work on the Development
Removing drainage from the Development
Removing a levee and/or berm from the Development
Failing to implement a proper construction schedule
Failing to follow the construction schedule
Blocking the drainage channels
Filling in existing drainage channels
Failing to properly install box culverts
Failing to create temporary drainage channels
Failing to allow adequate drainage after construction
Failing to install silt barriers
Allowing the Development to force rainfall toward Plaintiffs’ homes’
Diverting surface water towards Plaintiffs’ homes
Failing to pay proper attention
Failing to provide notice or warning
Failing to have a proper rain event action plan
Failing to have a proper storm water pollution prevention plan
Failing to follow a proper storm water pollution prevention plan
Failing to coordinate activities and/or conduct
Failing to supervise the activities of the Development and engineering
Failing to instruct in proper construction and/or drainage requirements
Failing to train in proper construction and/or drainage requirements
Failure to review engineering plans
Failing to comply with the Terracon Consultants, Inc. geotechnical report
Failing to construct the emergency release channel
Failing to timely implement the detention ponds
Allowing inadequate construction to take place
Failing to hire an adequate engineer to implement the project plan
Failing to protect runoff from flooding homes
Failing to protect Elm Grove from flooding during construction.

Basis for Exemplary Damage Claim

Paragraph 42 contains some of the strongest language in the complaint. It alleges that the Developer Defendants knew of the risks, and both the probability and magnitude of the potential harm to others. The complaint asserts, “These acts and omissions were more than momentary thoughtlessness, inadvertence, or error of judgment. Rather, the Developer Defendants had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.”

“Such acts and/or omissions,” the paragraph continues, “were a proximate cause of the flooding and the resulting injuries and damages sustained by Plaintiffs. Accordingly, Plaintiffs hereby seek an award of exemplary damages.”

Having said all that, the plaintiffs seek BOTH ordinary and exemplary damages (defined below).

*Location of plaintiffs’ flooded homes in relation to Perry/Concourse property.*

8 Defendants, 9 Counts, 2 Floods, 3 Degrees of Negligence

Altogether, the petition alleges nine counts against eight defendants in two floods. Spelling out who is being sued for what and why involves a lot of overlap and redundancy. But some of the Counts specify subsets of defendants, floods, allegations and degrees of negligence. So you may want to read the entire document.

The petition splits the defendants into three groups: Contractors, Developers, and LJA Engineering, with specific charges against each. The basis for charges sometimes varies also. For instance, charges against LJA include (in addition to many of those above) failure to:

Adequately report the modeling
Use the correct hydrology method
Adequately model the development
Notify the developers and contractors of the importance of the existing berm.

Plaintiffs say LJA was aware of the risks, but nevertheless proceeded with willful and conscious indifference to the rights safety and welfare of the victims.

As a result, plaintiffs are suing LJA for negligence, negligence per se and gross negligence for BOTH floods.

Differences Between Degrees of Negligence

Black’s Law Dictionary describes the differences:

Negligence is the failure to do something which a reasonable and prudent man would do, or doing something which a reasonable and prudent man would not do.
Negligence Per Se is the form of negligence that results from violation of a statute. The violation of a public duty enjoined by law for the protection of people and property. So palpably opposed to the dictates of common prudence that no careful person would be guilty of it.
Gross Negligence is the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. It is a conscious and voluntary act of omission which is likely to result in grave injury when in the face of clear and present danger of which the defendant is aware.

Nuisance Claim

In addition to negligence, plaintiffs also claim nuisance…”When Defendants unlawfully diverted … water onto Plaintiffs’ homes.”

Black’s Law Dictionary defines nuisance as “…that activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right of another…and producing such material annoyance, inconvenience and discomfort that law will presume resulting damage.”

Seeking Damages, Exemplary/Punitive Damages

The ordinary damages, plaintiffs claim, consist of one or more of the following:

Cost of repairs to real property;
Cost of replacement or fair market value of personal property lost, damaged, or destroyed during such event;
Loss of use of real and personal property;
Diminution of market value of Plaintiffs’ properties;
Loss of income and business income;
Consequential costs incurred, inclusive of but not limited to alternative living conditions or accommodations and replacement costs;
Mental anguish and/or emotional distress;
Prejudgment interest;
Post judgment interest;
Attorneys’ fees
Costs of Court.

However, as a result of alleged gross negligence, plaintiffs also seek exemplary damages as punishment. Black’s Law Dictionary defines exemplary damages as “Damages on an increased scale awarded to a plaintiff over and above actual or ordinary damages, where wrong done to a plaintiff was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct.”

Defendants’ Responses Not Yet Filed

As of this writing, the Harris County District Clerk’s website does not show responses filed by either Perry or Concourse to new allegations.

March 1 Preferential Trial Date Requested

Because of the number of plaintiffs, expert witnesses, defendants and law firms involved in this case, the plaintiffs have requested a “preferential trial setting” of March 1, 2021. A preferential trial setting eliminates the possibility of numerous continuances due to scheduling conflicts between the court, parties, attorneys and witnesses.

The plaintiffs have also requested a proposed Amended Docket Control Order that shows alternative dispute resolution (mediation) happening on 1/29/2021.

Net: If the judge accepts the new timetable, it will likely be another 7 to 8 months before this case sees any resolution.

As new developments happen, read about them here.

Posted by Bob Rehak on 6/19/2020

1025 Days since Hurricane Harvey and 274 since Imelda

“The Developers Are Coming! The Developers Are Coming!”

Actually, the developers are already here and licking their chops over the extension of the Grand Parkway (SH 99).

My riff on Paul Revere’s famous line is not meant so much as a statement of impending doom as about the need for caution.

Certainly, there are many honorable developers who try to build high-quality communities for people without adversely affecting downstream residents. I don’t wish to malign a whole profession. Nor do I want to fail to acknowledge the many wonderful communities they have built in this area.

But there are also some developers who put profit before people. They try to cut corners wherever they can and hope that nobody will notice. Especially regarding flood control. It’s expensive and easy because most people don’t understand it.

Grand Parkway Coming Soon To Wetlands Near You

The construction of State Highway 99, aka the Grand Parkway, has opened up vast new areas on the outskirts of Houston to developers. Many of those areas consist of wetlands and forests.

*TxDoT is currently prepping land for Section H of the Grand Parkway almost all the way to FM 1960 on the east from US59.*

*From USGS. Wetlands near the path of Grand Parkway extension*. *Compare with maps above and below.*

Visible Difference in Development Density Where SH99 Completed

The map below shows permit applications in the north Houston area. Compare the density of projects around sections of the Grand Parkway that have already been completed (left) with the areas on the east where the concrete has not yet reached.

This map shows permit applications in the northeast Houston area, both within the City and its ETJ (extra territorial jurisdiction. The Colony Ridge development featured below is outside the ETJ (green area) in the upper right of the map above.

Developers have even more projects underway outside the City’s ETJ (not shown on the map above).

How Development Can Affect Flooding

Kingwood residents have seen how one developer can contribute to flooding hundreds of homes. Last year, Perry Homes clearcut 268 acres north of Elm Grove before installing detention ponds. Hundreds of Elm Grove homes then flooded on May 7 and again on September 19, during Tropical Storm Imelda.

Below are recent photos of a massive 10,000 acre development in Liberty County near Plum Grove. It is about to become a 15,000 development now, thanks in part to Grand Parkway access. And yet it has only one small traditional detention pond.

Detention ponds slow down the rate of runoff to compensate for the loss of trees, wetlands and ground cover that have been replaced by streets and rooftops.

Their goal: to prevent downstream flooding.

Colony Ridge Accounts for All Growth in Liberty County In Last Decade

Colony Ridge can account for all the growth in Liberty County in the last decade. Below are some photos of Colony Ridge and its expansion near Plum Grove. The approach of SH99 will make it more accessible and therefore more attractive (at least from one point of view).

All aerial photos below were taken on 6/126/2020.

*Looking north across the Grand Parkway extension toward Colony Ridge in Liberty County near Plum Grove.*

*Just north of the Grand Parkway (upper left), you can see roads going in that will accommodate even more manufactured homes, aka trailer homes.*

*The developer puts in roads, ditches, water and sewer. Fire hydrants? Forget it.*

Developer’s Marketing Strategy

The developer tries to pass as many costs along to lot buyers as he can to maximize profit. He targets Hispanics. Residents tell me that sometimes two or three families may live in one of the homes you see here.

Nobody knows the real population of Colony Ridge because many residents are reportedly undocumented and uncounted.

Site work before parking a home is the responsibility of site buyers, many of whom openly burn brush to clear their lots. Like the developer, they’re trying to cut costs.

Land of Fire and the Forgotten

*Resident burning brush on his property last Sunday afternoon.* *Residents aren’t the only ones burning.*

*That smoke you see on the horizon is from dozens of brush fires set by the developer as he continues to clear land.*

*At this point*, a major storm would bring the potential for uncontrolled erosion, *just as it did in Woodridge Village in Montgomery County, above Elm Grove.*

*As dry as it has been lately, the developer is burning brush piles next to woodlands. That increases fire risk. The barren surface also accelerates runoff and erosion, increasing flood risk.*

*Note the haze and plums of smoke on the horizon* *and the vast expanse of exposed, packed dirt.*

*The smoke is coming from burning piles of brush, such as these. If a fire spread into surrounding woods, local volunteer fire departments would be overwhelmed.*

If this were Houston, hydrants would be spaced at a minimum of every 500 feet. A firefighter told me that the spacing often depends of home values and population. Based on population alone, he believes this area should have hydrants.

One Small Detention Pond for 15,000 Acres

*The developer has one detention pond (center) for the entire 15,000 acres. He relies on less efficient, in-ditch detention for additional capacity.* *Note the proximity to SH99 in the upper right.*

*There are no detention ponds anywhere in the new areas being cleared. This is reminiscent of Woodridge Village which contributed to the flooding of hundreds of homes in Elm Grove.* *But Woodridge was only 268 acres.*

*The developer relies on this and other drainage ditches to double as detention ponds in storms. But at the far end of this ditch…*

*…FM 1010 washed out during Harvey and destroyed one of the two major access roads into the development. The in-ditch detention failed. So has the county. The road has been out now for 1025 days*, *increasing the commute time for residents and the response time for firefighters.*

Endless Loop of Construction and Destruction

State Highway 99 represents more than just a third loop around the City of Houston.

*SH 99 will bring more developers* *and more people eager to escape downstream flooding issues.*

Tapayer funded roads such as these create endless loops of construction and destruction. They are like a perpetual motion machine. Building one area floods another, causing people to move farther out and the cycle to repeat itself.

No one will admit it’s intentional, of course. The flooding is just a byproduct of greed. Cut a detention pond here. Substitute in-line detention there. Don’t bother planting grass to reduce erosion. Send your problems downstream. Let someone else worry about them.

One Chance

Do all developers think that way? Of course not. Many have principles and wonderful communities to show for them.

That notwithstanding, as one Splendora resident said, “They really only have one chance to get this right. If they screw this up, it will be almost impossible to fix and they will argue over who is going to pay for it for centuries.”

We are at that inflection point now.