Learn morehttp://s3.amazonaws.com/cville/cm/mutlimedia/20141125-Higgins-Ruling-Edens.pdf With Albemarle County’s many streams impaired, stormwater utility fees loomCity, county, Stonefield seek dismissal of stormwater suitCity settles lawsuit with Stonefield developer
A consortium consisting of the Great Eastern Management Company and the Pepsi Cola Bottling Company of Central Virginia filed suit against Stonefield developer Edens in March 2013.
At issue was whether a 72-inch pipe drilled underneath U.S. 29 between the northern section of Stonefield and property owned by Great Eastern unlawfully floods a drainage channel that serves Seminole Square shopping center.
“While the Court finds that the design inflicted injury to the plaintiffs, the Court does not find that it is beyond what is necessary,” wrote Judge Cheryl V. Higgins in an eight-page ruling.
The ruling was welcomed by Stonefield’s developer.
“We feel that this ruling is accurate and in the best interests of the community,” said Brad Dumont, senior vice president of development at Edens, in a statement.
The consortium plans to appeal.
“As the plaintiffs have stated many times, they welcome the Stonefield development as an asset to the community,” said Pam Fitzgerald, spokeswoman for Great Eastern.
“However, such development need not come at the cost of Stonefield’s neighbors’ development potential, land value, and property rights,” she added.
The lawsuit initially argued that Albemarle County and Charlottesville had illegally issued permits for Stonefield’s stormwater system, but Higgins dismissed those claims in October 2013.
However, Higgins did agree to consider the consortium’s claim that the stormwater management system was a nuisance because it caused flooding at Seminole Square, as well as their claim that the flooding is “intentional trespass” of downstream land.
The trial over the matter was held in June.
The plaintiffs had argued that when Edens cleared undeveloped land in the Stonefield development, the new conditions created additional “surface water” that routed too much water through the 72-inch pipe. They claimed it was an “artificial channel” not allowed under state law.
However, Higgins disagreed with that interpretation and supported the defendant’s view that the pipe was an extension of a “watercourse” and that different rules applied.
“One may, in the reasonable development of his property, grade it or erect a building thereon and not be liable for discharging additional diffused surface water as a result thereof,” Higgins wrote.
Exhibits presented by Edens’ attorneys at trial showed that the overall stormwater plan for Stonefield is designed to retain up to 2.5 million gallons of water that would be released downstream slowly to avoid flooding.
However, Higgins agreed with plaintiffs that the pipe has caused harm to downstream properties, but said their arguments had not convinced her to grant their request to have it closed.
At trial, Great Eastern president Chuck Rotgin had argued that some of his land could no longer be developed without flooding land owned by the U.S. Postal Service.
Higgins said that argument was based on hypothetical redevelopment that has either not yet happened or is likely prohibited. Much of the property would require a critical slopes waiver to be built upon.
“The harm from erosion and other effects of the physical presence of the water is at best speculative,” Higgins said.