Mesa Del Sol, a west Casper subdivision, sits above the city on a hill off CY Avenue. It’s a stone’s throw from Meadowlark Park and offers an unobstructed view of Casper Mountain. The homes are mostly single-story structures, with a few split-level and two-story houses. The assessed value of most of the homes involved falls in the mid to high $200,000s, and most were built in either 2015 or 2016.
By most accounts, it’s an average American neighborhood.
But inside the homes, things are falling apart, according to documents obtained by the Star-Tribune. Doors don’t open. Walls are cracking and bowed. Foundations are sinking into the allegedly uneven soil the homes were built atop.
And last month, during a record-breaking cold spell, four of the homes had their gas cut by Black Hills Energy because the structural faults in the homes posed a safety risk.
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In 2017, several of the subdivision’s homeowners hired an attorney and filed a lawsuit against the developers who built the homes and the real estate agents who sold them.
The suit makes a few major allegations. First, it accuses the subdivision’s developers of knowingly building the homes on bad soil and building inadequate foundations for the soil conditions. It also alleges the builders did not follow the relevant building codes and “failed to construct the homes in a good, workmanlike and habitable manner.”
Finally, the suit accuses the real estate agents who sold the homes to the homeowners of intentional misrepresentation and negligence, claiming they knew of the soil conditions and the inadequate foundations and failed to inform the prospective buyers of the details.
The suit is sizable, with 24 plaintiffs and 17 active defendants. Initially, there were 25 defendants, but eight have either settled out of court or have otherwise been dismissed from the suit.
A litany of builders are named in the suit, but Casper developer Coupens Construction applied for the building permits. (A permit for one of the homes was not found among the documents provided to the Star-Tribune by the city.)
Neil Coupens, the developer’s registered agent, could not be reached to comment for this story, but court records show Coupens has filed third-party suits against the subcontractors hired to work on the development.
None of the 24 homeowners named as plaintiffs responded to calls or Facebook messages from the Star-Tribune, but Jason Ochs, the homeowners’ attorney, offered an update.
He said the suit is headed to arbitration in April, essentially meaning a judge will hear the issues but no jury will be present. Ochs had hoped to get a jury trial, but the sale agreements for the homes all included mandatory arbitration clauses, forcing Ochs’ hand, he said. According to May court records, retired Judge Wade Waldrip will oversee the arbitration process.
Ochs said there are a number of ways the suit could resolve. If the court rules in favor of the plaintiffs, homeowners could receive monetary damages, the court could void certain contracts that are currently binding homeowners and their assets to their crumbling houses, and the court could divide responsibility among the defendants — and not necessarily evenly.
‘Conditions that represented an imminent danger’
The city, Black Hills and an outside consultant all agree these homes are indeed damaged.
In late 2017, Higgins & Associates, a consulting firm hired by Ochs to inspect the plaintiffs’ homes, delivered a scathing report to the city detailing building code violations, cracked foundations, inoperable doors and windows, and bowed and bending walls.
“We observed structural distress and several building code violations … we also observed conditions that represented an imminent danger to the occupants of the home,” read the reports on each of the homes Higgins inspected.
After the city received the report, the building division sent letters to each of the 11 property owners mentioned by Higgins to schedule an inspection. Eight of the 11 homeowners responded, according to a January 2018 memo from Casper Chief Building Official Dan Elston to then-City Attorney Wallace Trembath.
Building inspector Justin Scott’s December 2017 walk-through inspections showed two of the homes needed immediate attention, having bowed basement walls and shifted support beams. Beyond the immediate problems, however, were a slew of other severe faults noted in all houses inspected: cracked and leaning walls, doors that couldn’t be opened, beams that weren’t anchored in place, and settling foundations pulling away from the homes.
Elston noted in his memo to Trembath that the contractors who built the homes were not being allowed back into the houses by the owners to make the needed repairs because of the active lawsuit.
Elston’s memo concludes, “all items in Inspector Justin Scott’s report need to be addressed and inspections performed after corrective action is complete. It is the desire of the City of Casper that the homeowners and the general contractors involved work together to complete these corrections. However, if this is not able to be accomplished, the above two addresses need to have temporary supports installed to minimize further movement or damage.”
Two additional homes were added to the suit after the city’s walk-through inspections were conducted. Higgins returned to inspect those homes and notified the city. Elston said he is unsure whether the city reached out to those homeowners to schedule inspections, but no documentation shows that the city did.
The lawsuit is alleging the majority of the property damage comes down to the soil the homes were built atop.
“Certain portions of (the subdivision) contained fill dirt, voids, broken concrete and other debris,” the complaint reads. “The soils … included both highly expansive claystone with a moderate to high swell potential as well as soils that were subject to consolidation/settlement due to poor fill conditions.”
The bad soil didn’t mean the developers couldn’t build the homes. It just meant the homes would require a particular type of foundation, called a “drilled pier” or “caisson” foundation to reduce the chances of settling, or sinking, into the soil.
The suit alleges the developers knew of this requirement, because the soil report came from a company the developers hired, but still opted not to construct drilled pier foundations.
There are some oversight mechanisms the city has to ensure homes are not built on bad soil, and if they are, that the foundations are adequate to handle it. For one, the city requires developers to conduct soil tests before their permits can be approved.
Elston said the city did receive a copy of the soil report in question, but because the report did not say homes couldn’t be built, only that the homes would need to have drilled pier foundations, the city allowed the subdivision’s construction to move forward.
Elston said in a scenario like this, the city’s building inspectors would be required to reference the soil report during the final building inspection to ensure the home had the proper foundation.
Whether the city’s inspectors did so for all the homes is unclear. Final inspections were mostly conducted between 2015 and 2016, but no inspection records existed for one home, and for two others, inspection records exist for other parts of the house but not for the foundation. For the rest of the houses, “foundation walls” were inspected but details about the foundation type are lacking.
Elston said all of his department’s records on the subdivision were given to the Star-Tribune as part of a records request this publication made to the city.
Some documents might be missing because the city was transitioning computer programs during the time the homes were constructed, Elston said. He said it could also be an oversight in record-keeping, but that doesn’t mean the homes and foundations were not inspected.
The active litigation has left the homeowners in flux. No repairs can be made to the homes until the lawsuit is resolved, and the gas cannot be turned back on until repairs are made.
Ochs said more gas shutoffs could be on the horizon, as Black Hills Energy is sending representatives to inspect additional homes in the neighborhood. He did say said he was cautiously optimistic that no more houses would lose their gas connections.
The four homes that had their gas shut off already are “making do” with space heaters and electric water heaters, Ochs said.
Originally Black Hills Energy had planned to shut off service to five homes, but withdrew one at the last minute, Ochs said.
“Black Hills Energy has made arrangements with the homeowners,” a representative for the utility, Michael Howe said, but declined to specify what those arrangements were.
Howe said the gas was turned off at those locations because of Black Hills inspections, which the state’s public service commission requires the utility to conduct. He declined to provide additional details on the homes or if additional houses were being looked at.
“Black Hills Energy is committed to providing a safe and reliable utility service to the public. The decision to shut off gas was done for safety reasons. Because these homes are the subject of active litigation, we cannot comment further.” Howe wrote in an email response to additional questions posed by the Star-Tribune.
Ochs said so far no solution has been identified to get gas back to the homeowners.
In addition to Coupens Construction, the lawsuit lists the following defendants: Environmental and Civil Solutions, ESC Engineers, Ground Engineering Consultants, Shawn Gustafson, Jared Rude, Travis Evans Environmental and Civil Solutions, Trinity Builders, Chad Westbrook, Boyle Excavation, Delton Construction, Destanee Concrete, John Does 1-10, El Roble Construction, Insight Builders, Chris Wendling and Christopher Wohletz.