BY LINDA BENTLEY | February 17, 2016
Hulsings and Thorstenson pursue lawsuit against town
CAVE CREEK – A year ago, Darrell and Meridy Hulsing and Collin “TC” Thorstenson filed a notice of claim against the town with a $10 million settlement demand.
The town didn’t respond to the notice or settlement demand and a complaint was subsequently filed.
Collin “TC” Thorstenson and Adam Trenk
The complaint was filed by Attorney Loren R. Unger of the Rose Law Group upon a referral by Rose Law Group Attorney Adam Trenk, who, before being recalled a month later, was serving as the town’s vice mayor.
The complaint asserts the town engaged in “unlawful alteration and obstruction of watercourse, Proposition 207, negligence, negligence per se, inverse eminent domain, trespass, nuisance.”
The Hulsings own Petite Acres Mobile Park located at 38221 N. 68th St., behind the Circle K.
The Thorstenson property at issue in this case is the over five-acre parcel located at 38020 N. Vermeersch Rd. adjacent to Petite Acres behind the Roadhouse.
Both properties are along the southern bank of Galloway Wash, which is designated as a floodplain and floodway by Maricopa County Flood Control District (MCFCD).
Darrell and Meridy Hulsing
According to the complaint, the wash had two tributaries flowing into one channel near Vermeersch Road and claims the northern tributary carried more water than the southern tributary, “which was the case for decades until the town began interfering with the flow of the wash.”
The complaint alleges the town created the problem around 2002 when it began developing Desert Awareness Park, located on the north bank of the wash at 38100 N. Vermeersch Rd., and constructed a concrete bridge across the wash approximately one-quarter mile east of plaintiffs’ property to connect Vermeersch Road to the park.
Plaintiffs claim the culverts supporting the bridge diverted the water’s flow towards the south bank of the wash and that rocks and gravel were placed in the wash adjacent to Vermeersch Road to further develop the road and obstruct the flow of water into the culverts under the bridge.
A couple years later, in 2004, the complaint asserts the town was involved in the development of Stagecoach Village and, as part of that development, it was involved in the construction of a permanent bridge along Galloway Drive over the wash, approximately 1,000 feet to the east of Vermeersch Road, further altering the wash’s channel flow.
Plaintiffs claim culverts were installed under the Galloway Bridge to purposely divert water away from Stagecoach Village, and, as a result, greatly increased the flow of water in the wash toward Vermeersch Road.
The complaint claims the town continued to place dirt, gravel and fill along the bridge between 2003 and 2005 to mitigate erosion of the road and bridge.
By 2006, plaintiffs claim the town placed a significant amount of earth and rocks into the wash to mark the border of Vermeersch Road along the bridge.
The complaint goes on to claim the town engaged in activity to mitigate erosion in 2007 and 2008, which it states had completely changed and diverted the wash’s flow from west by northwest to south by southwest.
It notes rip rap was placed along the wash’s south bank in 2009 and claims by 2011 the bank, once concave in shape, became convex.
The heavy rainfall in August 2014 caused devastating effects and when the bridge and its culverts gave way it caused a wall of water to smash into plaintiffs’ property.
It points out, prior to the event, the northern border of the Hulsing property was a reinforced concrete wall approximately five feet high and 18 inches thick, which marked the edge of the property for more than 50 years and was several dozen feet away from the south bank of the wash.
The severe rains on August 19, 2014 caused the Hulsings’ wall to collapse into the wash, a tenant’s residential recreational vehicle to fall into the wash and a residential mobile home become threatened with falling into the wash.
Thorstenson claims structures on his property had been swept away after falling into the wash.
The complaint alleges former Town Manager Usama Abujbarah, who is named as a defendant, “ordered the earthwork, rip-rap, grading and other activities to take place in the wash.”
Claiming the town neglected to obtain statutorily required written authorization from MCFCD, prior to any development in the wash, the complaint states the town is strictly liable for damages.
Plaintiffs claim the town violated floodplain regulations as well as its own ordinances.
As far as the inverse eminent domain claim goes, the complaint asserts the “Takings Clause” of the Fifth Amendment of the U.S. Constitution, the Arizona Constitution and state statute, which prohibit the taking of property without just compensation, and claims the town’s actions caused them the loss of property.
The case is set for a pre-trial conference in early May.
