Like many other WNC residents, Carl Mott and Roberta Jordan dreamed of starting a small, home-based business that would enable them to live and work in the same beautiful place. After scoping it out, the would-be entrepreneurs settled on the idea of building a Japanese-style "rotenburo" (open-air bath) spa featuring outdoor hot tubs, a cold plunge, a Baltic wet/dry sauna, changing rooms, showers and a retail shop. Such a facility (modeled on successful spas in Europe, Asia and Santa Fe, N.M.) had to be a winner, they figured -- especially in combination with our majestic mountain scenery. Jordan owns a ridge-top home just south of the Blue Ridge Parkway in the Reynolds community that boasts a fantastic western view of the Great Smoky Mountains. Mott bought adjoining land and founded Shoji Retreat LLC, with Jordan signing on as the principal investor.
photo by Jodi Ford
The two hired a board-certified architect and a contractor with a commercial license; bought $100,000 worth of tubs and other equipment; and ordered towels, kimonos, sandals, retail products and landscape plants. The construction contract stipulated 150 days until completion, and work began in mid-December 2002 with the goal of opening the following May. Once construction was under way, Mott and Jordan launched a publicity campaign with a Web site designed to attract both local customers and tourists to a unique (for this region) and luxurious experience. The partners joined the Asheville Area Chamber of Commerce, bought a Yellow Pages listing, and printed and distributed 50,000 brochures and other promotional materials.
That was two years ago. And for Mott and Jordan, time is of the essence (see, "How Long?" below).
Today, the tubs are still packed in a storage unit, and thousands of dollars worth of exotic plants -- still balled and potted and now mostly dead -- ring the circular drive and a rotting pallet that partly supports a $25,000 sauna. Construction workers armed with shovels, sledgehammers, skill saws, crowbars and drills have been hard at it, ripping out framing, pulling down wiring, knocking holes in concrete-block walls, and drilling into solid cement floors and footings. A new contractor is on the job -- performing the demolition work needed to add the steel reinforcement bars and concrete columns that the original builder failed to install, and moving ahead with the reconstruction.
The missing structural steel and cement were specified in the architect's plans, and Buncombe County building inspector James Crouch signed off on the work, verifying that it had been done.
It had not.
Finding the dirt
Like most of us, Mott and Jordan are not construction experts; as far as they knew, the work was being done as specified. Their only complaint was how long it all seemed to be taking. According to Jordan, days would go by without the contractor, Dan Arrowood, or his crew showing up on the site, and repeated phone calls to Arrowood seemed to have no lasting effect. In a Sept. 9, 2003, letter to Sharon Willen at the Chamber of Commerce, Jordan wrote, "Throughout the 150-day contract period, Mr. Arrowood and his subcontractors were absent more than present (i.e. out of the first 100 days, no one was on the job 60 of those days that were sunny and dry)." Periodically, however, a county inspector put in an appearance to sign off on various aspects of the work.
As winter turned to spring, relations between Arrowood and his clients continued to deteriorate until finally, according to Mott, Arrowood "walked off the job, asking me to sign a release from the project." From April through June 2003, the partners sent a series of letters to Arrowood asking him to resume construction, but this did not have the hoped-for effect. Arrowood's attorney, meanwhile, maintains that Mott and Jordan broke the contract and drove Arrowood away (see "Washing Hands" below).
In May, the Shoji partners called the architect, Peter Knowland, to inform him of the situation. Knowland inspected the construction site and came up with a list of problems and code violations. "When he saw that there was no U-block bond beam, that really set him back," Jordan recalls. The accuracy of this list of defects would later be confirmed by both the Buncombe County Permits & Inspections Department and the county attorney (in his response to a lawsuit the partners eventually filed).
A bond beam is a structural feature installed in concrete-block walls. It's formed by laying a course of special U-shaped blocks, placing steel reinforcement rods in the cavity, and pouring concrete to fill it -- thus creating a reinforced-concrete beam around the perimeter of a building. A standard requirement on such structures, it appears in the blueprints for the Shoji Retreat. Normally an inspector checks to see that the steel is in place before the concrete pour commences.
Alarmed by the discovery, the Shoji partners contacted county Permits & Inspections Supervisor Matt Stone, who informed Arrowood that he needed to have the walls assessed with equipment that could detect the presence of steel. Stone recommended Bunnell-Lammons Engineering of Greenville, S.C. (the company also has an office in Asheville). In a Sept. 9 letter to the partners, however, Stone said that Arrowood "maintained that this wall was inspected and approved by Buncombe County and that he should not have to pay an engineer to evaluate this foundation."
At that point, Shoji went ahead and hired BLE to conduct the assessment. Associate County Attorney Keith Snyder was very helpful in dealing with this matter, notes Jordan. "Snyder told Matt Stone, 'We don't want to make things difficult' and had the county cut us a check for half the cost of the BLE inspection."
BLE performed its test on Sept. 10, 2003. The company's report lists 16 pieces of rebar detected, out of 27 called for in the design; none of them extended down to the foundation, as required. And none of the cells containing steel had been poured with the requisite concrete. The report also notes: "The reinforcing steel identified appeared not to correlate with the 48-inch spacing specified on the architectural and structural drawings."
"Mr. Arrowood made no attempt to independently return to the job site and correct these deficiencies," says Mott, so on May 30, 2003, the partners filed a complaint with the North Carolina Licensing Board for General Contractors. In mid-July, Mike Silver, an inspector for the board, visited the site. Three months later, at its regularly scheduled quarterly meeting on Oct. 24, the licensing board's Review Committee considered the case and, according to its report, "decided to continue this case for 30 days to allow time for the Respondent-Licensee to make corrections."
The issue was tabled again at the Review Committee's winter meeting and yet again on March 5, 2004, when the report reads, "The Review Committee decided to continue this case until the next Review Committee meeting."
In an Aug. 3, 2003, letter to Jordan and Mott, Arrowood stated, "I have a complete list of the changes that need to be made per the inspector's requirements." Farther down, he promises, "I have followed up with Matt Stone and Mike Silvers [sic] and informed them both that all changes will be made and complete within the next thirty days."
On Sept. 9, Stone sent the Shoji partners a letter acknowledging that Buncombe County had re-inspected the site and found that, despite Arrowood's promise, no repairs had been made. In fact, Stone revealed, "Since my last inspection a crack in the center of the block wall of the spa area adjacent to the bathhouse has developed." He also reported other newly discovered construction deficiencies.
The next day, Stone sent Arrowood a letter giving him a new deadline (Sept. 17) and informing him that he would be fined $50 per day until the construction work was brought into compliance. Yet in late February 2005 -- almost 18 months later -- Stone told Xpress, "Dan Arrowood has not been fined yet."
And though Buncombe County's willingness to pay for half the cost of the BLE assessment might seem to suggest that the county had assumed some responsibility for the code violations approved by the inspector, subsequent events proved otherwise.
In January 2004 -- one year after the contract was signed and the county first inspected the site -- the partners' attorney received a letter from Snyder advising "that the County of Buncombe does and will assert its sovereign immunity as a defense to any alleged liability it may have as a result of county inspectors discharging a duty, imposed by the State for the benefit of the public, while inspecting the work of Arrowood Builders." Sovereign immunity is a legal principle under which a governing body cannot be held liable for actions performed in the course of its mandated functions.
Nonetheless, on April 22, 2004, Shoji Retreat filed suit against Arrowood, Knowland and Buncombe County alleging breach of contract, breach of express and implied warranties, negligence, unfair commercial practices and fraud, among other charges.
A month later, Knowland's attorney, Frederick S. Barbour, filed a response in Superior Court that stated, in part, "At no time did defendant Knowland contract with Shoji Retreat LLC" and, in sum, denied any responsibility for their problems.
Buncombe County Attorney Joe Connolly filed the county's response on June 22, acknowledging that Arrowood had failed to comply with state and local laws and that the county had "approved certain phases of the project, including the footings, the foundation, the framing, the electrical and the plumbing." Connolly also noted that subsequent county re-inspections requested by the partners had revealed code violations. Nevertheless, he pleaded sovereign immunity on the part of county government and further asserted that the plaintiffs should be "taxed with the cost of this action."
In an Aug. 2, 2004, letter, Xpress asked Connolly: "If the signature of an inspector isn't backed up by accountability on the part of the county, what does the signature mean? Are people who pull building permits told that they need to insure themselves against failure of the county to properly inspect?"
Connolly did not respond to the letter; reached later by phone, he declined to discuss specifics, citing the pending lawsuit. But despite the lack of accountability, he maintained that inspections do a great deal of good, because "they improve the overall quality of construction work in the county."
This isn't the first time that county inspectors have been caught signing off on work that was never done. What's more, one inspector involved in this project, Roger Morgan, has been cited in the past for "gross incompetence" by the state Code Officials Qualification Board (see, "Building-gate 2000" below).
In mid-September, unable to reach Arrowood by phone, Xpress wrote to his attorney, John Powell, asking these questions: Why did Arrowood Builders pull off the job? Why did Arrowood Builders not adhere to building plans and standard construction practices? Does Arrowood Builders have any explanation for the signatures of Buncombe County inspectors approving work that was never done?
In a follow-up phone conversation in early October, Powell told Xpress that Jordan and Mott "breached the contract and ran Arrowood off the site."
photo by Jodi Ford
Regarding the inspection failure, he said, "Arguably, inspectors should be more on top of things they pass." But he added, "Perfection is very hard to achieve in the real world." And though he did concede that "one structural element could have been caught," Powell also maintained, "On the real-world scale it is minor, with no practical change in the strength of the retaining wall."
Yet on Jan. 6, as the new contractor was performing remediation work at the site, one of Arrowood's walls collapsed. That wall -- in a small, adjacent equipment building that hadn't been included in BLE's analysis -- was also missing steel and concrete.
In a letter dated Jan. 3, 2005, Xpress asked Arrowood to comment on key elements of his role in the Shoji construction job. But in a subsequent phone conversation, the builder referred all questions to his attorney.
Some observers, meanwhile, see the whole situation in a rather different light. "It seems like it's irresponsiblility on everybody's part," commented Mac Swicegood, former president of the Council of Independent Business Owners -- a local group that frequently decries excessive government regulation and red tape. Still, he places the final responsibility squarely on the shoulders of the Shoji partners. "They're the ones who employed all these people. They're the ones who made a decision: 'We like you as an architect, we like you as a builder, we like this site, we want to build this thing.' That was their decision; it wasn't anyone else's. So they fell on their own damn sword."
According to Stone, Arrowood continues to pull construction permits in Buncombe County.
Last August, the North Carolina Licensing Board for General Contractors told Mott and Jordan that it would hold a disciplinary hearing on Arrowood within three to six months. Initially scheduled for Dec. 8, 2004, the hearing was rescheduled for Feb. 9, 2005 -- and then postponed until March 9 (almost two years after the Shoji partners filed their complaint with the board). As this issue went to press, Xpress had just learned that Arrowood's hearing had been put off yet again (to May 11).
"There are 40-60 disciplinary hearings each year," reports Complaint Administrator Susan Dixon. "That is, there are that many for whom the board finds probable cause -- not that many actually disciplined." According to Dixon, "Ninety-five percent of those called for hearings are disciplined -- either with a verbal reprimand or loss of license." When asked how many licenses are revoked annually, Dixon referred Xpress to the agency's online newsletter, the NCLBGC Bulletin. Although specific dates aren't given, in 2003 (the latest year for which information is posted online), it appears that 16 contractors had their licenses revoked, and about two dozen had their licenses suspended. In every case, however, the suspension "was immediately and conditionally restored," usually with limits placed on the dollar value of projects the contractor could undertake.
In September, attorneys representing the partners, the builder and the architect met for voluntary mediation, but no agreement was reached. After that meeting, the attorney for the architectural firm's liability-insurance carrier offered a cash payment of up to $20,000 in exchange for removing Knowland from the lawsuit, but the partners declined to accept it, says Mott. At this point, their claims include not only breach of contract and design errors on a $200,000 project, but lost revenue for the year-and-a-half that they could have been conducting business.
"Every Sunday, we return 20 to 40 phone inquiries that come in during the week. We can document thousands of dollars of lost revenue," said Jordan. "Some future customers are even angry, wondering why we have the Web site if we don't have the spa open yet. We assure them all we are more anxious than they are and will contact them as soon as it is done."
In December, Shoji Retreat LLC hired Jerry Gilley, a prominent commercial contractor whose recent local projects include the Grove Arcade restoration and Greenlife Grocery. Gilley's crew cut away framing and knocked holes in concrete block, confirming the technical assessment done by BLE: very little steel and no concrete in the walls. But to install a poured bond beam, the second-floor framing would have to be completely demolished, so an engineer has designed an alternative structural element to be installed inside the walls. In addition, the lateral walls will be solid concrete, both to offset the construction defect and to buttress the rear wall, which serves as a retaining wall for an earth embankment supporting the paved access road. Holes have been drilled in the footing to receive No. 6 rerod, which has been secured with epoxy glue.
According to an invoice dated Dec. 22, 2004, these repairs cost $31,000. And in a footnote to the invoice, Gilley told the partners that the final amount was likely to exceed $37,000. The subsequent collapse of the wall and the discovery of additional structural defects -- including walls approximately 2 feet out of square, missing French drains and gravel, and misapplied waterproofing -- have further increased the total cost, Jordan reports.
But Gilley has also given Jordan and Mott some good news -- a promise that they'll be able to open for business on June 1. And after so much uncertainty, the partners are happy to be able to think about their business again, instead of fretting over stalled construction. As Jordan told Xpress, "The Japanese see the ritual of bathing and soaking as something meaningful in their daily routine; it isn't just a quick shower before work, like here in America." She added, "When people come to Shoji, we want them to sink in, soak and savor, enjoy nature and feel like they've really gotten away."
Errors in building inspection are old news in Buncombe County. The most egregious case revealed to date involved the Wingate Hotel, reported in these pages four years ago (see "A House Divided," Oct. 4, 2000 Xpress).
Construction at the Wingate was essentially complete when a rupture in a water line flooded the building. The moisture resulted in the growth of a toxic black mold. The only way to eliminate the mold was to rip out interior walls and refinish the building. In the course of deconstruction, multiple building-code violations came to light. By some estimates, county inspectors had passed more than 5,000 structural problems.
Four inspectors were fined by the North Carolina Code Officials Qualification Board. The inspectors' actions "constituted gross incompetence within the meaning of N.C.G.S. S 143-151.17(a)(6)," the board stated in an Aug. 19, 1999, judicial review. Three of those inspectors lost their certification (one permanently); the fourth, Roger Morgan, was given nine months' probation.
According to county Permits & Inspections Supervisor Matt Stone, Morgan is also the inspector who approved the plans for the Shoji Retreat, which have been challenged in the partners' lawsuit. In the course of reconstruction work, the design has been substantially modified.
Asked about the situation, Morgan told Xpress in January that he had not been involved in overseeing the actual construction on the Shoji job and referred questions to Stone, who said: "The initial inspector on that job was Jimmy Crouch. ... He resigned six months ago and relocated to the coast."
Construction delays can be a bitter pill to swallow, but the Shoji partners also face a deeper challenge: Roberta Jordan is afflicted with primary biliary cirrhosis, a rare and incurable liver condition that can dramatically shorten life expectancy. "The time from diagnosis to end-stage liver disease can range from a few months to 20 years, depending upon when the diagnosis is first made," writes Dr. Howard J. Worman of the Columbia University Medical School's Division of Digestive and Liver Diseases. Although the cause is unknown, the condition is not linked to alcohol or drug use and is not contagious.
The autoimmune disease is attended by numerous secondary disorders, including fibromyalgia, degenerative disc, osteoarthritis, hypothyroidism and chronic fatigue -- all of which, says Jordan, cause her more day-to-day difficulty than the illness itself. And although about one-third of end-stage patients eventually get a liver transplant, two-thirds die waiting for an organ donor. Jordan says her goal is to keep herself in the best shape she can. But because of her unpredictable life expectancy, the business is being built close to home so that Mott can both tend to her needs and help parent Jordan's 14-year-old daughter, says Jordan.