Page One

On a quiet cul-de-sac in central Berkeley, the neighbors will chat about nearly anything except the tangle of lawsuits they have filed against each other and the city. 

“I’m busting to talk, but it’s in litigation,” said Brian Huse of 2163 North Valley Street who is being sued by eight neighbors and is countersuing all of them as well as the city and Strawberry Creek Lodge, a senior living facility. 

At issue is who is responsible for paying an estimated $1.3 million to repair the dilapidated culvert. When it was built, sometime in the early 20th century, it sent Strawberry Creek racing below their houses and now threatens to drag at least two of their homes and the Strawberry Creek Lodge down into the creek. 

Last year Anthony Cody and Kristin Prentice of 2152 North Valley decided to take the matter to Superior Court. They filed suit charging that the collapse of a section of the cement culvert had resulted in damage to the foundation of their home. Since they didn’t live over the culvert, and they didn’t know where culpability rested, they sued the city and the neighbors who lived upstream from them above the damaged culvert. 

The suit spawned a series of countersuits that have been consolidated before Superior Court Judge Bonnie Sabraw.  

Although they have entangled one another in lawsuits, Jay Pederson, the attorney for Marie Andrushuk of 2151 North Valley, said the neighbors were essentially charging that the damaged culvert is the city’s responsibility. The city attorney’s office disagrees. 

With much of Berkeley’s 34,000 linear feet of concrete culverts coming to the end of their natural lives, the question of who is responsible for paying to repair culverts running underneath private property will either claim millions from the city’s coffers or from homeowners’ wallets. 

The dispute arose in 2001 when creek advocates working near the culvert at North Valley Street peeled back ivy and vines to find that a 15-foot slab of concrete had broken off from the culvert. 

An ensuing engineering study by Oakland-based Applied Materials & Engineering found that “severe deterioration” had occurred on the west end of the culvert and in one section the culvert’s strength was measured at 241 PSI (pounds per square inch), when the standard strength was 3,500 PSI. The engineer also found that the culvert had sustained multiple cracks and lacked any steel reinforcement to protect it from further cracking 

The collapse of the culvert has changed the flow of water, which during heavy rains ricochets off the displaced concrete and slams into the creek bed and the sides of the creek banks. Since the culvert has started to cave, the creek bed and banks have eroded threatening the stability of the lodge and homes of both Cody and Andershuk. 

The neighbors are contending that the culvert is part of the city’s storm water drainage system that funnels rain water from city streets into the Bay, Pederson said. If the culvert is part of the city’s flood control system, it is the city’s responsibility to fix, their complaints allege. 

The city replied that Strawberry Creek is not part of its storm drain system. Instead, Deputy City Attorney Matthew Orebic held that the city has a “formal storm drain system of pipes that run parallel to the creek.” 

Orebic also contended that the city had no record showing that the damaged section of the culvert, believed to be built between 1915 and 1928, was constructed by the city. 

He wrote in the city’s Complex Case Management Conference Statement that it was likely that a private developer extended a different culvert to increase the amount of land available for development. 

While the issue of liability remains tangled in litigation, the city and neighbors are working on an emergency repair job to prevent further erosion this rainy season. 

The project, estimated to cost in the tens of thousands of dollars, would place rock filled wire baskets against the creek banks and break up the large slabs of fallen concrete culverts to slow the rush of the water, said Ed Ballman, a civil engineer at Balance Hydrologics, one of two Berkeley-based companies asked to bid on the project. 

Ballman said the work would have to be completed by Oct. 15, the state-mandated date to cease all work in streams before the onset of the rainy season. 

With no final settlement in sight, Richard Register, the head of Ecocity Builders, a chief advocate of unearthing creeks, has floated a compromise.  

He suggested establishing a land trust in which developers would pour money into a trust to buy out the homeowners in return for height waivers for new projects in downtown Berkeley or other acceptable locations. When homeowner wanted to sell, he said, the trust would buy their land and unearth the creek. 

“So far a lot of people have been fearful of it, but we think it’s a good idea,” he said. 

?