By Jason Sweeney

The latest court setback will not stop Dr. Tom Burns from raising a big stink with the city of Los Altos over liability for a sewage backflow that caused major damage to his home.

The rheumatologist said last week he will continue to pursue legal action, appealing his case to the appellate courts after county Superior Court Judge Leslie Nicholas rejected his claim March 18. Burns wants reimbursement for at least $1.2 million in damages to rebuild his home at 1530 Frontero Ave. after 36,000 gallons of sewage, by his estimate, poured out of his sinks, toilets and bathtubs on Feb. 3, 2003. He was forced out of his home for nine months while it was cleaned up and repaired.

“The smell was horrendous,” said Burns. “They had to filter the bacteria out of the air.”

The city initially agreed to reimburse Burns for damage to his home, but when costs went over $100,000, the city consulted its insurer, the Association of Bay Area Governments, which advised Los Altos to deny the claim.

City Manager Phil Rose said, while the city did initially admit fault, the report was preliminary and the city changed its stance after further review.

The appeals process will take another another 12 to 14 months and the size of the claim will continue to grow as legal expenses accumulate, Burns said.

The city’s lawyer, Joseph Howard, said Burns is liable for damages to his home because the builder failed to install a backflow prevention device to prevent sewage overflows, and that unfortunately for Burns, state law bars suing the builder 10 years after construction of a house.

“If your house is lower than the street, then it’s important that you have a backflow device,” Howard said. “In Los Altos, every home that is connected to the city sewer is supposed to have a backflow device according to the city plumbing code.”

Burns contests that few homes do and that neither the county nor the city brought it up when inspectors signed off on his home in the fall of 1984.

Further, he says the city’s plumbing code offers inspectors the option of waiving the backflow device requirement.

The backflow prevention device is a piece of equipment that works like a toilet flapper, allowing water to flow out to the sewers but not back into the house. The cost of installation can vary depending on the installation area; if the area is paved it can push costs into the thousands of dollars.

Jim Porter, director of public works, said the sewage overflow into Burns’ home was caused by a plug in the main line, which had cleared itself by the time it was checked out, and that a backflow device would have protected the home from damage.

“The uniform plumbing code that was in place at the time the property was built required that the property have a backflow prevention device,” Porter said. “One was never installed.”

Steve Hamel, another Los Altos resident who had sewage flood into his home, said the backflow device was not the problem. “The backflow device is a red herring,” Hamel said. “The city’s point of customer utility delineation in terms of homeowner responsibility is illogical. It should be the cleanout.” The cleanout is a plug that gives access to the sewer pipe to clean it out. Hamel believes the city is at fault for not properly maintaining the sewer lines and that Los Altos residents should not be liable for backups in sewer mains.

Burns disputes Howard’s and Porter’s contentions that his home violated the plumbing code and cited 11 other payouts by the city for sewer overflow damage. He believes the city has fought his case because of the extent of the damages and the size of the claim.

“The city doesn’t have an effective root control program,” Burns said. “That’s the problem here.”

According to Burns, instead of constant maintenance on the sewer lines, the city of Los Altos waits until a backup occurs before performing maintenance work.

“We proactively go out and hydroflush the mains,” Porter said.

The goal is to have no stoppages, Porter explained, but in reality stoppages will occur, which is why a backflow prevention device is necessary.

Burns said he had to take money out of his 401(k) and IRA to cover expenses caused by the backup.

“No resident of Los Altos is safe from a sewer intrusion unless the city initiates a proactive sewer maintenance policy,” Burns said.