STAFF WRITER

An Oakland homeowners group has filed a lawsuit that alleges the city and a construction company are responsible for wastewater and raw sewage discharges brimming over the banks of Chimes Creek in the Millsmont neighborhood.

Named in the suit are Oakland and DeSilva Gates Construction, the developer behind a project that is converting the former Leona Quarry site into a residential development.

The suit contends that construction at the quarry has resulted in a higher flow through Chimes Creek, causing erosion and loss of property, and poor maintenance on the city's part has caused untreated wastewater to flow out of the sewer on numerous occasions -- violations of the state's Clean Water Act. It also states numerous violations of municipal codes, for a total of 31 claims.

"The developer's hydrologist claimed that post-construction runoff of stormwater would be less than before they paved the roads and built the homes," said Chiye Azuma of the Millsmont Homeowners Association, which filed the suit. "That's based on the premise that the quarry was formerly covered with an impenetrable layer of rock, but the site was well vegetated, and there were a number of ponds at the quarry that slowed down and absorbed the stormwater."

Mike Willcoxon of the DeSilva company said that while he couldn't comment on the lawsuit, the project is a "poster child for erosion control."

"The water board has looked at it and they think we're doing a great job," he said.

Willcoxon said the detention basin is still being completed and an overflow like last year's will not happen again.

But Azuma fears that the amount of water coming off the hillside was greatly underestimated. The suit seeks the implementation of measures to control and monitor water flow, as well as civil penalties.

According to the suit, runoff has been unnaturally diverted into Chimes Creek since the mid-1980s. The quarry project drains into the same stormwater system -- and hence into the creek. This led to a large increase in the capacity the creek handles, making it run higher, longer and more turbid.

"There are people who have lived here 30 years and never seen water rise into their basements like it did (in December)," Azuma said.

In 2004, the San Francisco Bay Regional Water Quality Control Board notified DeSilva Gates that it was in violation of statewide stormwater regulations. The company has since taken steps to prevent such runoff, but this week's lawsuit states that it's not enough.

After heavy rainfall just before Christmas last year, Mark Brest van Kempen wrote on the Chimes Creek Web site (http://chimescreek.info) that "It is extremely clear that the capacity for dealing with the run off from the Leona Quarry site is woefully inadequate and the downstream neighbors are paying for it."

He added that sewer lines were breaking, and raw sewage was spilling into the creek.

"We are talking feces and toilet paper flowing on the street," he wrote.

The sewage problem is due to breaks in wastewater mains and overflowing manholes -- responsibilities of the city.

In March, a Public Works report acknowledged work needs to be done in the area, scheduled to be completed sometime this summer.

The city attorney's office has not been formally served with the lawsuit, and could not comment on it.

Eric Kurhi can be reached at 510-748-1686 or e-mail ekurhi@cctimes.com.

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