Aspen Grove Condominium Ass'n v. CNL Income Northstar LLC

This appeal concerns a water retention basin that was dug in 2004 as part of an expansion project for Northstar Village, a ski resort. The ski resort is owned by CNL Income Northstar LLC and operated by Trimont Land Company (sometimes collectively referred to as CNL). The retention basin was deemed necessary because the expansion project changed the drainage system that diverted storm and snow runoff from approximately 149 acres of developed property. Nearby and downhill from the retention basin are 180 condominium units owned by Aspen Grove Condominium Association (Aspen Grove). Water from the retention basin began to overflow and seep onto Aspen Grove’s property starting in December 2004 and continuing thereafter despite remediation efforts. After several years of attempts to solve the water problems with the retention basin, CNL communicated to Aspen Grove in 2008 that it would not perform any further remedial modification or remove the retention basin.

Aspen Grove responded by suing various entities involved in the Northstar Village expansion project, including CNL. The first phase of the bifurcated trial resulted in the trial court’s granting a permanent injunction…