Folsom Flood Could Trigger Lawsuit

Charging multiple years of negligence and broken promises, a group of businesses in the northeast Mission plan to sue the city for failing to prevent a sewage spill that caused thousands of dollars in damage last month when heavy rains overwhelmed the drainage system.

It’s not clear just how many will join the suit, but so far seven businesses have expressed interest, said Stable Café owner Thomas Lackey, who is spearheading the effort. Lackey told Mission Loc@l he finds it unacceptable that the city has long known about the problem, yet the flooding continues.

The San Francisco Public Utilities Commission, the agency that maintains the city’s sewers, declined to comment directly on Lackey’s accusations.

Lackey said that after heavy rain woke him at around 3:45 a.m. on April 12, he threw on some clothes and ran to his café down the block. Three manhole covers had blown out and he could see water gushing like a geyser. The damage had been done; his building at 2128 Folsom was flooded.

That morning, about half an inch of rain fell in just over an hour. It was the second flood in three years.

“[The City] attempted to fix it but it didn’t work,” he said, referring to earlier repairs. “It’s just the neglect of multiple decades. It’s not too late; they need to do it differently.”

Affected businesses say the city has been very responsive in cleaning up the mess. The cause of the flooding is still under investigation, but the northeast Mission, one of the lowest points in San Francisco, has been flooding for more than 100 years.

The city is the process of paying out an estimated total of $5 million to plaintiffs who sued over flood damage in 2003 and 2004. This year´s flood has already cost the city $1 million to clean up, according to Jean Walsh, the Public Utility Commission’s spokeswoman. That´s excluding potential court settlements, she said.

The floods will return, experts say, unless the city makes more drastic repairs.

“The existing sewers are OK, but they are marginal,” said Greg Braswell, sewer information system manager for the Department of Public Works. “For small or medium-sized storms, the system does OK. The bad news is that during a big storm, water can get discharged” into the Bay.

Walsh called it “a complex problem,” with “multiple factors.”

“We have the best brains behind it,” she said referring to the agency’s efforts to fix the problem.

On the morning of April 12, a high tide and hard rain stretched the city’s sewers beyond the breaking point. The water wasn’t much, but it hit the system fast. Debris in the pipes slowed the water’s flow, and because the tide was above the system’s outlets, the emergency discharge failed to work, said Walsh.

Because San Francisco sewer pipes carry both sewage water and storm runoff, they had that much more volume to carry — and the ramifications were greater when the system overflowed into homes and businesses.

Lackey said he became ill from the bacteria left by last month’s muck.

A Historical Problem

The drainage problems from 14th to 18th streets between Folsom and Harrison streets date back to the mid-1800s, according to city officials. The area used to be a marsh; the city filled it around 1860 or 1870, but didn’t do a good job, said Braswell.

As a result the area has settled, and in some places it is considerably lower than the street. “If you’re standing in the outdoor patio in the back [of Stable Café], in 1870-80 you would have been 24 inches taller,” Braswell said.

“All these buildings built since the 1930s are in good shape, but the older buildings, because we’ve never raised them, that’s where the water wants to go,” he said.

On April 12, the Stable Café and the corner apartment buildings took the brunt of the flood damage.

“You have two options: raise all the buildings or find another route for all the water to get out,” said Braswell. “It’s easy. Hydraulics, man.”

Easy, but not cheap. To elevate Stable Café alone would cost around $150,000 to $200,000, and raising the adjacent apartment building would cost another $700,000 to $800,000. Other nearby buildings also need a lift, and there are more near 14th and Harrison streets, another low-lying area prone to flooding.

In the short term, the city has opted to make smaller improvements while it plans a major overhaul years from now.

Some of the upgrades were completed in March 2008, including a new 36-inch sewer pipe on Shotwell Street, a 60-inch pipe on 18th Street and a pump at Shotwell and 17th streets, Walsh said. Additionally, the city installed a large storage structure to hold combined sewage during high-intensity storms. A pumping station was also added. Then, in September 2010, the PUC installed new sewers on Folsom Street from mid-block 17th Street to 19th Street.

Those changes, however, failed to prevent April’s flood on Folsom.

“This is a challenge for any system,” Walsh said. “It’s not a quick fix, it’s not a magic bullet.”

In the long term, Walsh said, the city will implement its Sewer System Improvement Project, a multibillion-dollar plan that addresses flooding problems citywide. The PUC doesn’t expect to break ground on the project for years, Walsh said.

In the meantime, the flooding continues. Stable Café, El Tepa Taqueria and other businesses had to close for several days so cleanup crews could wash off the sewage. The businesses will also close later this month so the city can replace the sheetrock.

If Lackey and other owners sue the city, it wouldn’t be the first time. In 2004, a group of more than 40 plaintiffs with flood-damaged property in Mission Terrace, the inner and outer Mission, the Excelsior and SoMa sued, claiming the city had failed to make improvements to the sewer system.

The suit came after two floods, on December 13, 2003, and February 25, 2004, overwhelmed the system in the area around 17th and Folsom streets. Owners of businesses and homes filed what is known as an “inverse condemnation” action, which allows owners, under the Fifth Amendment, to receive “just compensation” if their property is damaged for public use.

In this case, “public use” refers to the flooding of the sites with city sewage and water.

The plaintiffs argued that the city knew the system was unable to handle “even modest winter storms,” according to the complaint.

During litigation of the 2004 suit, the city argued that it shouldn’t have to pay a high fine because it had already fixed the problem, according to Mark Epstein of the law firm Seiler, Epstein, Ziegler, and Applegate, who represented the plaintiffs.

The city also argued that the storm was a once-in-a-hundred-years storm.

“For a one-in-a-hundred-years storm, it sure does seem to be happening a lot,” Epstein said, referring to the floods that occurred in 2009 and 2012.

After years of litigation, in 2007 Epstein won for the first of many plaintiffs, and now the city is in the process of paying out a total of roughly $5 million, including nearly $2.8 million in property damages, about $750,000 in diminution of property value, and about $1.5 million in attorneys’ fees, court costs and interest.

Epstein claims that the city has found it cheaper to maintain an imperfect system and settle as claims come up, rather than build a better system.

“The city, to its credit, has been much more proactive, much more open to working with [claimants],” he said.

The City Cleans Up

This time around, the city responded quickly.

Within hours of the flooding on April 12, cleaning crews were dispatched to the area. They stayed for days, cleaning the surfaces of affected properties, and will come again to replace sheetrock that may have been infested by mold – all on the city’s dime.

“They actually improved our garage,” said Juliana Sasken, whose home on Shotwell Street sustained some minor flood damage.

But it wasn’t always like that. Businesses and residents told Mission Loc@l that the city only started showing up after the flood of October 19, 2009.

Samuel Picazo, 66, who has lived at 2104 Folsom St. for 42 years, said he has seen his apartment building flooded by sewage and storm drain overflow at least 10 times.

The landlord, Boris Chukreeff, said he has called the city after previous floods, but got no response or help.

“We complained before and we asked, take a look at it, and they did nothing,” he said.

After the recent flood, many accepted the city’s offer to clean their water-damaged drywall, but Chukreef declined.

“It’s more trouble than it’s worth. I can do it better and faster,” he said. “You have to file a claim in the city and the city will reimburse you. It can be for a long time. No one lives in the garage anyway, that’s the main thing.”

Health Risks

“I get goosebumps when I see the rain because I know what’s coming,” said Picazo, a Mexican immigrant who is also the building’s handyman. He has been cleaning up the aftermath of floods since the 1990s.

He is so used to it that he has made up a kit that includes his boots and several ponchos.

Picazo’s apartment building, built in 1927, has gone through at least 10 floods since the early ’90s. When it floods, water and sewage reach the entire first floor of the building, which includes the garage and three other rooms. The street-level rooms are vacant because the constant flooding makes them uninhabitable, said Chukreef.

One of the worst floods was in 2004, when runoff and sewage filled the street-level rooms up to several feet. The smell of sewage was unbearable, and Picazo saw dead rats among the floating debris.

“I’ve seen hairless rats floating around,” he said. “I thought they were cats.”

Picazo has cleaned the floors and other surfaces, but the sheetrock and the floors have never been replaced. He has kept some of the furniture damaged in previous floods, which he uses in his entertainment room on the ground floor, where he watches sports.

He was trying to fix the damage to one of the floors when a reporter stopped by on a recent Monday afternoon.

The day before the April 12 floods, Picazo was admitted to the hospital with a lung-related illness. He did not want to elaborate on the diagnosis, saying only that it was a lung-related, and was spreading to his kidneys and liver.

When a doctor asked him about his living conditions at home, he didn’t say anything about the earlier flooding. He never considered that the floods might have played a role in his health problems, he said.

Lackey, the owner of Stable Café, has no doubt that his own pulmonary illness is related to the flooding. He took antibiotics shortly after the floods and was out sick again last week because of a bacterial infection related to the sewage, he said.