A Placer County judge has ordered Northstar owners and developers of the Northstar Village to remove an infiltration pond that is allegedly killing off a stand of century-old aspen trees and causing widespread damage to the neighboring Aspen Grove condominiums.
“The evidence showed continuous and recurring water seepage or migration from the infiltration basin … that continued to invade plaintiff’s down-gradient real property from 2004 until the time of trial,” Placer County Superior Court Judge Lloyd Von der Mehden wrote in his final ruling.
The decision marks a victory for the Aspen Grove Condominium Association, a collection of 180 property owners who sued a number of companies associated with Northstar to get the pond removed. The defendants, including CNL Income Northstar, Northstar Mountain Properties, East West Partners, and Trimont Land Company, could not be reached for comment.
The trial over the pond began in May last year, and the final decision, issued on Feb. 13, orders the Northstar defendants to begin the process of removing the pond by March 15. The decision can be appealed within 60 days of the ruling. A second phase of the trial, which has not begun yet, will determine damages.
The origins of the lawsuit date back to 2004, and the multi-year construction of the Northstar Village. During construction, developers located an infiltration pond directly uphill of the Aspen Grove condominiums, within 120 feet of the nearest condo building, Judge Von der Mehden wrote.
Soon after the pond’s construction, water overflowed the basin and “seeped or flowed” onto Aspen Grove property, according to the ruling. While sandbags were added to the pond to keep surface water from continuing to flow onto Aspen Grove property, and other alterations were made to the pond, the judge agreed that water continued to seep underground and damage the condo property over the next eight years.
The water damage to Aspen Grove property is visible in the eroded foundation of a condo building, sump pumps that suck thousands of gallons of water per day from condo crawl spaces, and, according to Aspen Grove homeowners, the dozens of dead and dying aspens in a majestic, old-growth grove at the center of the condo association property.
The judge’s ruling pointedly criticized Northstar Village developers for the location of the pond and the lack of technical testing at the site before the pond’s construction.
“The evidence shows that alternative sites were available on defendant’s land. No ground water level tests were performed at the site nor other appropriate (geotechnical) investigations before construction of the basin. The nature and extent of potential damage to the downhill landowner was not adequately considered, and the appreciable damage that has resulted was foreseeable,” the ruling stated.
Attorneys for CNL Income Northstar and Trimont Land Company have already responded to the ruling, saying that March 15 is too soon to initiate the pond removal, and asking that they be allowed to line the pond instead of move it.
The Aspen Grove Condominium Association Board of Directors noted that their “eight years of perseverance” paid off in not only a ruling that the pond should be removed, but also a permanent injunction against “diverting or causing to divert any water from their uphill, developed real property onto [Aspen Grove property].”
The Aspen Grove Condominium Association has already spent approximately $2.5 million on the litigation, which has amounted to a $13,000 assessment for each owner in the 180-member association.
The condo association will have to spend more money to finance the damages portion of the trial, which will be heard by a jury. But even if Aspen Grove is successful in all the litigation, the association will likely not come out ahead, said Bob Thornton, the president of the association.
“It’s likely that we are going to be in the hole financially,” said Thornton. “Even if they repair all of our buildings, move the pond, and do everything, we will still be in the hole millions of dollars.”
