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Builder settles with W.Va. couple in flooding suit

April 04, 2006|by ROBERT SNYDER

MARTINSBURG, W.VA.

Days after a Berkeley County judge cleared the way for a jury to consider a count of fraud against a Maryland-based homebuilder, the company agreed Monday to resolve a complaint brought by a local couple who claimed the builder failed to disclose that their lot was prone to flooding.

Homeowners Anke and Charles Linton withdrew a complaint they filed in Circuit Court in May 2004 against Dan Ryan Builders Inc. after agreeing to the terms of a confidential settlement with the homebuilder, who presented them with an offer following testimony from an expert witness who said the couple's house should never have been built over a basement.

Company President Dan Ryan, who was prepared to take the stand for the second time before the agreement was reached, later approached the couple to offer his apologies for their ordeal.

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In an interview, Ryan and Senior Vice President and Chief Financial Officer Paul Yeager said the settlement offer was not an admission of liability nor an acknowledgment of fraud by the company.

"We settled the matter to the mutual satisfaction of the Lintons and Dan Ryan Builders," Yeager said.

An engineer with Pennsylvania-based Lapina & Associates LLC testified Monday that the Lintons' property should never have been developed.

"It makes absolutely no sense," said forensic engineer Victor Dozzi, who was hired by the couple to determine the cause of flooding that plagued their Harlan Run residential subdivision property following heavy rains. "Anybody with any construction experience does not build a basement like that below a creek. It's common sense ... forget engineering."

In testimony last week, Anke Linton said heavy rains beginning in 2003 caused their lot to flood between 30 and 40 times, twice flooding the basement.

In a February 2005 analysis of the property, Dozzi said the property was not suitable for the construction of a residence.

"(The Lintons' lot) should have been left as a flood reserve area," said Dozzi, who questioned how the property received permission from the county health department for the installation of a septic system, and called the dumping of shale to raise the height of the lot a violation of the county's floodplain ordinance.

But Dozzi told a jury of five men and one woman the homebuilder should have known the lot was prone to flooding, citing the need to build it up it with 32 truckloads of fill.

"That's a very large amount. That's not casual grading," Dozzi said of the shale the builder used to raise the level of the lot.

But Dozzi's failure to measure the groundwater table on the property made his conclusions unreliable, said Dan Ryan attorney Tracey Rohrbaugh, who sought to show that remediation measures proposed by the engineer would have been sufficient to correct problems with flooding, and were less expensive than the amount sought by the homeowners.

Under questioning, Dozzi backed away from the solutions he proposed in his analysis of the problem, indicating the lot was ill-suited for an addition if the basement were to be abandoned, and a trenching system that could divert water from the house would likely not receive approval from the health department nor permission from affected property owners.

The Lintons' attorney, Michael Scales, would not disclose if the couple, who had been seeking $355,000 from the builder, would remain in their home.

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