When is a flood zone not a flood zone? Riverstone owners sue HOA developer

By Deborah Goonan, Independent American Communities

Hurricane Harvey recovery efforts continue in southeastern Texas. Now that waters have receded, clean up and damage assessment is well underway. Homeowners and residents wonder what went wrong.

Yesterday, I wrote about widespread flooding in Cinco Ranch, which caused failure of a sewage treatment plant.

Today’s report from KTRK (ABC 13) highlights Millwood at Riverstone subdivision in Sugar Land, developed by Johnson Development Corporation.

The report illustrates why an estimated 80% of flooded properties in Texas are not covered by flood insurance. 

Homeowners in Millwood are among thousands of Texans who were told at the time of purchase that their homes were not located in a flood plain. So, as one would expect, very few homeowners acquired flood insurance.

‘Neighborhood should have not been built’: Homeowners file lawsuit against developer after flooding issues

By Miya Shay
Wednesday, September 27, 2017 07:09PM
SUGAR LAND, Texas (KTRK) — When Etti Clingman and her husband bought a house in the Millwood at Riverstone subdivision, they never imagined neighborhood gatherings would include trading flood stories.

“You couldn’t leave, the water was too high to drive away,” Clingman recalled the day the flood waters crept onto her perfectly manicured lawns.

Just about every home in the Millwood, several hundred in all, flooded. Homeowners say the waters didn’t begin rising until Harvey had already passed. They want to hold people responsible.

“We specifically asked if we were in the flood plain. And he said no, you’re not,” said Rahul Hemrajani, recalling a conversation he had four years ago with the home builder. “You’re protected by the levee and this doesn’t come in the flood plain, so that’s the reason we bought a house here.”

The entire subdivision is less than five years old. County real estate records show the plats for the area were approved in 2012. Eyewitness News has also uncovered documents that indicate the land now called Millwood was once in the flood plain.

Records show developers built levees around the neighborhood and also retention ponds. After that was completed, the area was granted a LOMR, or Letter of Map Revision. This technically removed the area from the flood plain. In a letter dated July 16, 2012, a letter from the developers’ engineers says “the district has received a LOMR to remove the entire district from the Brazos River flood plain.”

Read more (Video):



Several important points need to be highlighted. For instance, Fort Bend County relied upon an engineer who works for Johnson Development Corp. to ensure that the master planned community would no longer be threatened by flood damage. That is why the engineer is among the defendants named in the  lawsuit filed on behalf of homeowners.

At this time, homeowners do not know if the engineer designed an ineffective storm water management plan, or if the developer and home builders failed to construct Millwood according to the engineer’s specifications.

Homeowners also do not know if their HOA intentionally avoided disclosing the past flood history of the land upon which Riverstone is built.

They feel betrayed by the developer, their HOA, and, most of all, Fort Bend County, for allowing Riverstone homes to be built in harm’s way.

Not an isolated case

What happened in Millwood at Riverstone is standard practice in many Counties, and not just in Texas.

Instead of obtaining an engineering evaluation and pre-construction plan from a disinterested third party, a local government is usually willing to accept the opinion and design plans of a licensed professional engineer (P.E.), even if that engineer gets his or her paycheck from the developer.

Does this arrangement create a potential conflict of interest?

Some would say that, in general, P.E.s would not risk losing their license or professional reputation by intentionally providing misleading information, in an effort to convince regulatory authorities and home buyers that retention ponds and levees will prevent floods in the future.

But, on the other hand, a P.E. that provides satisfactory results for a prominent developer is likely to be hired as the lead P.E. on future projects.

Consider the implications.

Of course, builders want to sell homes at the highest price possible, and buyers might be less willing to pay top dollar for a brand new home situated in a formerly designated flood zone.

Should buyers have to rely upon the word of a developer or home builder, without  any way to verify statements or promises made at the time of sale? Shouldn’t a builder be required to disclose information about the history of the land where a new home community will be constructed?

Developers generally control HOA boards while construction is ongoing. Can a home buyer or homeowner rely upon a developer-controlled board to be transparent about risks and liabilities faced by members of the association?

When things go wrong, the County often claims it is not liable, because its staff members simply relied upon expert plans and certifications. Don’t taxpaying constituents deserve better from their County government?

Who can a home buyers and homeowners rely upon to protect and uphold their rights and the general public interest?

2 thoughts on “When is a flood zone not a flood zone? Riverstone owners sue HOA developer

  1. Sounds like the only ones making out here are going to be lawyers. Floodplain as a geological meaning as well as a regulatory meaning and they are not the same. Its my understanding of this area that a levee was built to protect the subdivision from the 100-year flood on the Bezos River, and that the levee system did not fail. The part of the problem is internal drainage, drainage from the land that would have flowed to the Bezos River now needs to be pumped over the levee. The pumping system was probably designed to convey the 100-year storm, but I have read that the storm totals were in excess of the 500-year storm and the pump system was over whelmed leading to the internal flooding. While the site s not within the regulatory floodplain it was certainly within the natural geologic floodplain. I don’t think that there is much of a case against the engineer for a bad design or the development firm for nondisclosure. There may be a case if the system was improperly operated or poorly maintained by the HOA or its agents.

  2. It is always a flood zone: This is the problem with every city, county planning department in my own opinion as a retired certified appraiser who specialized in flood plain, who worked with county/city planning departments. Once a property is in a flood zone it stays in a flood plain zone no matter how much the developer redesigned the land, It is manmade and does not meet Mother Nature’s plans. I have literally seen new plats planned on 50,100, and 500 year flood zones whereby a number of these newly developed areas get flooded within 10 years of that filed plat with the cities and counties, whose very policies are at best minimal to bring the land above flood zone levels. And do they check? No, they do not. They totally rely on submitted reports from the developers engineers. Millwood At Riverstone homeowners should have also included the County in that lawsuit, they are supposed to protect the public they did not. Here is the other issue. Far too many developers have far too many commissioners in their pockets and this also includes any planning and building department. FEMA does not actually step in on any of these new developments either there is enough blame to go around. People, I just cannot stress enough – do not believe your real estate agent either – do your own homework check out the history of the area/land before you buy. Get it in writing from the homebuilder/developer if a flood were to happen they would rebuild your home at their expense. Protect yourself from actual fraud to deceive a buyer from potential nature’s threats. Over the last 25 years developers have been building at a great rate, buying one land right after another, land that should never be built on. So why do counties/cities continue to issues permits or approve plans on and in flood areas? More tax dollars $$$$$ that is what the cites and counties are looking at, not the foreseeable potential danger.

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