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A CLASS ACTION lawsuit seeks to hold the city of San Francisco responsible for raising up the sinking sidewalks in the city’s Mission Bay neighborhood.

The suit, filed last week in the Superior Court of San Francisco County, is based on a chain of agreements that created the structure for development of the 300-acre parcel that was formerly a part of San Francisco Bay. Under the agreements, the suit alleges, the city took responsibility for maintaining the infrastructure of the streets and sidewalks of Mission Bay.

The suit says that even as the infrastructure sinks, the city refuses to shoulder responsibility for the necessary work. The plaintiff asks the court to compel the city to fulfill its duty to maintain the spaces.

In a complaint that weaves San Francisco history with dense legalese, the plaintiff tells the origin story of Mission Bay, the neighborhood roughly bounded by China Bay to the north, Dogpatch to the south, I-280 to the west and the San Francisco Bay to the east.

Prior to 1859, the area was part of the bay but thereafter was gradually filled with dirt and rock. By 1892, the perimeter of Mission Bay was enclosed, “shutting off the direct tidal flushing of San Francisco Bay.”

After the 1906 earthquake and subsequent fires, debris from downtown San Francisco was hauled to the area and “used to fill the center of Mission Bay as well as to extend the eastern shoreline further into San Francisco Bay.”

Until the late 1990s, the reclaimed land was used for various industrial purposes and was home to a railyard and a roundhouse for locomotive repair.

According to the suit, the site was to be developed through a public-private partnership with a private master developer responsible for building — either directly or through sub-developers — many of the projects that today make up Mission Bay.

The master developer was also responsible for building out the infrastructure of Mission Bay — the street system, sewer and water systems and other public improvements — for ultimate transfer to the city or its agency, the San Francisco Redevelopment Agency and its successor, the Office of Community Investment and Infrastructure.

The city, the suit alleges, was to use various tax and other revenue streams to acquire and maintain the infrastructure going forward.

Floating on fill

The site has seen massive construction so that today Mission Bay includes more than four million square feet of commercial space, 6,000 housing units, a third of which are affordable housing, a research campus for University of California San Francisco, a 250-room hotel, and a medical center. Mission Bay is also home to the Chase Center.

The development also includes “a new public library, new local fire and police stations, and a new public school together with all necessary public infrastructure.” The complaint alleges that the master developer “constructed more than $700 million in public infrastructure, including the streets, sidewalks, a storm drains, financed through the special assessments and increased property taxes generated by the development.”

According to the complaint, the fact that the Mission Bay project was built on top of fill was well known when the development was conceived and in consequence “the residential, commercial, hospital, school, and other occupant buildings to be built (founded) upon piles driven through the Mission Bay fill to bedrock stabilizing them in place.”

However, “the surrounding infrastructure improvements such as streets, parks, curbs, sidewalks, gutters, … ramps, light poles, fire-hydrants, and public landscaping, were approved to float on the fill.”

This created a situation where the buildings — anchored by poles into bedrock sitting hundreds of feet below the surface — are fixed in place, while the improvements sit on the surface of the soil. As the fill below the surface has settled, the infrastructure has floated down, while the buildings have stayed in place.

Photos from the Berding & Well LLP complaint against the San Francisco Office of Community Investment and Infrastructure on behalf or the Radiance Owners Association attempt to show alleged safety hazards created by a lack of maintenance of the sinking public infrastructure at their properties. (Photo courtesy of Berding & Well LLP via Bay City News)

Dozens of news reports have documented the subsidence of the infrastructure and shown lurid photos of sidewalks detached from the buildings where they were originally aligned with doorways and building facades.

The subsidence is not just an aesthetic issue. The sinking sidewalks have created danger for pedestrians on the sidewalks and in entering and exiting buildings. The complaint alleges that building owners “are forced to install metal ramps, with bright yellow paint, to bridge the separation between their building and the public improvement, and to place warning signs cautioning patrons, guests, vendors, emergency personnel, and others to, “Please watch your step!” when accessing or leaving buildings to warn of and mitigate a hazard and potential liability.”

What lurks beneath the surface

Dan Rottinghaus, a construction litigator at Berding & Weil LLP (he claims that his last name is German for “construction defect”), is the lead attorney for the plaintiff.

In an interview with Bay City News Foundation, Rottinghaus said that below the surface of the sidewalks and streets there is piping that runs out from the buildings in Mission Bay, and carries electric, sewer, water and utility services in and out of the buildings.

As the infrastructure sinks and the buildings stay in place, the complaint alleges that the subsidence “twists and contorts below-grade piping and conduits causing breakages and discharges…”

Rottinghaus believes that the situation will continue to get worse. He points to a soils report of the area prepared by geotechnical consultants Treadwell&Rollo in April 2005 that says that subsidence of up to 24 inches may occur within the development.

Not all areas are equally affected. Rottinghaus says that by his observation, the subsidence is greatest on the eastern side of the area, particularly to the north.

“Nobody is looking for a handout. The main thing is we just want to… see if we can convince the court that this city agency needs to come back and do something.”

Dan Rottinghaus, attorney for plaintiffs

He also says “it’s not a uniform kind of subsidence. So, you could have a pothole effect. You know, it could be subsided just three inches under a slab and then drop off to maybe ten, 12 inches and then come back up again. So, it’s not just uniformly flattening down.”

Rottinghaus asks the court to certify a class that includes all property owners within Mission Bay who have paid fees, taxes or other charges to compensate the city for “its obligation to accept, operate, and maintain the public improvements.”

The complaint asks the court to award damages to the owners but Rottinghaus candidly admits that obtaining damages will be difficult and his primary goal is to get the court to order the city to take responsibility for the problem.

“Nobody is looking for a handout.” Rottinghaus says, “the main thing is we just want to… see if we can convince the court that this city agency needs to come back and do something.”

Rottinghaus was not persuaded by the suggestion that homeowners are required to repair their own sidewalks. He says that may be true for a tree root that causes a crack in the concrete but these are much larger scale design problems, well beyond the capacity of individual homeowners to fix. “You just can’t go out and begin boring into the roadway or you can’t go out and hire your own bulldozer to come in and do a pavement layer and shut down Third Street.”

A spokesperson for the City Attorney’s Office said that they have just received the suit and are reviewing it.