Long Pond Village is seeking $1.74 million in damages from the former owner of Rotterdam Square, claiming the flood-mitigation system on the mall’s property wasn’t operational and failed to function as designed during Tropical Storm Irene in 2011.
The lawsuit, filed by the owners of the 192-unit complex in state Supreme Court of Schenectady County last week, accuses Rotterdam Square LLC — a one-time subsidiary of Macerich Co. — of not properly operating the flood gates leading to an impoundment area near the mall’s northern entrance on West Campbell Road near Interstate 890 and causing substantial damage to their property.
In addition, the claim accuses the company of failing to remove “trees, bushes and other vegetation” that prevented the impoundment area from functioning as designed.
“[Rotterdam Square LLC] was negligent in failing to construct, maintain and operate the impoundment area to avoid causing damage to surrounding properties, including [Long Pond Village’s] property,” the lawsuit states. “During the course of the Irene storm, [Rotterdam Square LLC], among other things, failed to manually operate the flood gate valves within the impoundment area.”
Long Pond was inundated with flood water from Irene, which caused serious damage to a total of 32 apartments in four of the development’s eight buildings. The owners initially estimated damages at $2.1 million.
Wilmorite Co., the company that built the mall during the 1980s, filled in roughly 21 acres of freshwater wetlands bisected by the Poentic Kill. Crews had to construct 3,650 feet of new channel to relocate the creek, which now runs around the mall’s periphery.
As part of the project, Wilmorite built a flood-control gate near the Sears anchor store and a detention area in a floodplain outside the mall. The system included an alarm inside the mall that indicates when the gates need to be operated and was intended to prevent the flooding of neighboring areas, since wetlands surround the site.
The state Department of Environmental Conservation maintained a $125,000 maintenance bond to ensure the structures associated with the system were properly maintained. The agency also kept a $2.9 million construction bond as part of six pages of conditions imposed on Wilmorite before the company was allowed to proceed with the massive project centered over a sensitive recharge area of the Great Flats Aquifer. The aquifer is Schenectady County’s primary drinking water source.
The mall was acquired by Macerich, a publicly traded property management corporation based in Santa Monica, Calif., as part of $2.3 billion multi-property deal in 2004. Macerich continued both bonds until selling the property to Mike Kohan, of Kohan Retail Investment Group, for $8.5 million last month.
In the past, mall critics and residents complained Macerich did little to maintain the flood mitigation system built by Wilmorite. As evidence, they pointed to the debris-clogged, man-made channel of the Poentic Kill, which periodically flooded in the years leading up to Irene.
“It was choked with debris,” said Aaron Mair, a member of the Sierra Club’s national board of directors, who lived near the mall until 2009. “None of those developments in the Campbell Road area have maintained that channel.”
Macerich did not respond to calls for comment. Likewise, attorneys for Long Pond did not return calls Tuesday; a property manager for the complex declined to comment.
The lawsuit against Rotterdam Square is the second legal action Long Pond has taken since the disastrous flooding from Irene and Tropical Storm Lee in summer 2011. The owners filed an Article 78 proceeding naming the state Canal Corp., state Department of Transportation, Schenectady County and the town of Rotterdam among the agencies responsible for maintaining drainage-related infrastructure surrounding the complex.
The entire complex was evacuated as Irene bore down on the region in August 2011. A property manager at the site during the flooding reported five culverts under West Campbell Road were clogged, forcing water to pour over the thoroughfare and onto Long Pond Village property.
“Long Pond Village apartments has a storm water management plan, which includes a retention pond on the property,” stated Jesse Holland in an affidavit included with the Article 78 proceeding. “However, the extreme backup of water on and near the property had nowhere to drain or flow out. There was nothing we could do to divert or disperse the water.”
The action filed in Albany County asked the court to compel the entities to “comply with their legal duties” to maintain any systems designed to alleviate flooding in Rotterdam. But in March 2012, acting Supreme Court Justice Roger McDonough dismissed the case, finding no basis to award Long Pond relief.
“The court has no legal authority to micro-manage the timing and methodology by which [the Canal Corp.] carry out their purported legal duties in maintaining, repairing, and cleaning the culverts, bridges, drainage, flood control, sewer and canal systems in Rotterdam.”