CASE UPDATE: Court Rules That A Water Retention Basin At Northstar Ski Resort That Is Causing Water Damage To Nearby Buildings Is A Nuisance, Granting An Injunction..

In Aspen Grove Condominium Assoc. v. CNL Income Northstar LLC, (2014) 231 Cal.App.4^th 53, the court of appeal affirmed a trial court order requiring the owners of the Northstar Ski Resort to remove a 20,000 cubic foot water retention basin.  Northstar constructed the basin as part of a major expansion of buildings, driveways and parking lots.  Despite the fact that Northstar had numerous other areas of its property on which to build the basin, Northstar the basis along a lower boundary if its property, close to neighboring buildings, and apparently without sufficient geotechnical or soils analyses.

The basin did not provide sufficient ground water infiltration as planned, resulting in chronically water-logged soil and water damage to the adjacent, downhill condominium development.   Three substantial modifications to the basin failed to correct the problem, but Northstar refused to remove the basin.  The condo association sued for nuisance, and the trial court granted an injunction ordering Northstar to remove the basin entirely so that the neighboring property would be restored to its original, relatively dry, condition.

The main requirement for obtaining permanent injunctive relief (i.e., a court order that someone do something (mandatory injunction) or refrain from doing something (prohibitory injunction)), is that there is no adequate remedy at law.  Northstar tried to argue on appeal that the condo association had an adequate remedy in the form of monetary damages and the option to build an interceptor trench, but the court of appeal rejected those arguments.  It held that Northstar had no right to require the condo association to build an interceptor trench on its own property to remedy the nuisance that Northstar created, and that limiting the condo association’s remedies to monetary damages would essentially give Northstar a private right of eminent domain:  “Regardless of the measure of monetary damages to Aspen Grove’s property, CNL [Northstar] may not force an invasion of the property rights of one private person to serve the convenience or necessities of another private party.”

©2014 Miles J. Dolinger. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship.

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Miles Dolinger

Miles Dolinger epresents individual, business and public agency clients in a wide range of real estate, land use, and public law matters (transactional and litigation). His office is currently location in Capitola, CA and serves clients in Santa Cruz, Monterey, San Benito and Santa Clara Counties.

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