News - Reduce Flooding

New Phase of East Fork Cleanup Begins

Last week, cleanup pontoons motored up and down the East Fork and its tributaries near East End Park in Kingwood. Giant claws mounted on the pontoons plucked downed trees and branches out of the water and off the shoreline. It was all part of a continuing effort by the City of Houston to remove debris that contributes to flooding.

*Photo Courtesy of Dee Price. Taken at East End Park where Peach Creek, Caney Creek and East Fork all come together.*

Stopping Beaver Dams Before They Start

During floods, the downed trees get swept downstream. They form “beaver dams” that back water up when the debris hangs up on other trees, boat docks, bridges and the Lake Houston dam itself. Removing the debris lowers the risk of flooding and damage.

During Harvey, such debris gathered in supports of the Union Pacific Bridge over the west fork, where it contributed to flooding in Humble.

*Union Pacific Bridge immediately after Harvey. Photo Courtesy of David Seitzinger.*

*Donna Dewhirst’s boat dock received a 70-foot surprise during Harvey*.

*Rail bridge over Lake Houston after Harvey. Photo courtesy of Donna Dewhirst.*

*Logs collect at Lake Houston Spillway. Photo taken on 6/16/2020.*

Improving Boater Safety

The debris pickup also improves boating safety when lake and rivers are low. Submerged trees can injure and kill boaters and water skiers.

*Semi-submerged trees in Lake Houston just north of FM1960 Bridge. Photo taken March 6, 2020.*

Posted by Bob Rehak on 6/21/2020

1028 Days since Hurricane Harvey

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