Legal challenges for Smith Canal floodgate

Dec. 22--One lawsuit was filed late Monday, and another was expected to be filed, seeking to block construction of a floodgate at the mouth of Smith Canal, which could mean further delay for thousands of Stockton property owners who are forced to buy flood insurance.

One of the challenges comes from wealthy homeowners who live closest to the proposed construction site.

Local officials said Monday that they were "disappointed" by the legal action, since the gate is intended to save about 8,000 properties from a high-risk flood zone designation that imposes mandatory flood insurance and building restrictions across the Country Club area, including some economically distressed pockets.

What's more, while the state has conditionally agreed to pay for a portion of the $29 million gate, the money hasn't yet been awarded. Lawsuits could create a perception of a lack of community support, even though residents already voted -- albeit narrowly -- to tax themselves to pay their share, said Jim Giottonini, head of the San Joaquin Area Flood Control Agency.

"The more it drags out, the more funding is questionable," he said Monday.

The homeowners group that formally announced it would file suit on Monday calls itself the Atherton Cove Property Owners Association. Prominent Stockton attorney Maxwell Freeman, who lives on Atherton Cove and whose name appears atop a comment letter sent by the association earlier this year, declined Monday to say how many homeowners have contributed to the fight against the floodgate.

Freeman's group has used attorneys from Stockton, Sacramento and San Francisco in making its case over the past year or so, warning that water quality in the cove will be ruined, among other concerns. The lawsuit follows the flood agency's formal approval of the plan in November.

"I just don't think it's right to destroy the cove when there's other alternatives," Freeman said Monday. "If that was the only alternative to the insurance, then we'd look at that."

Officials say those other alternatives are either more expensive or infeasible. Culverts connecting the southeast end of the cove to Smith Canal are supposed to address the water quality worries.

Not all of Freeman's neighbors support his cause. Bob Kavanaugh lives on Atherton Island, about a "7-iron shot" away from where the gate would be built. He believes it's necessary to help property owners who were forced by the federal government to purchase flood insurance in the wake of Hurricane Katrina.

"The (gate) will benefit so many people," Kavanaugh said. "It just boggles my mind that people would sue to stop something like that when it basically won't have any effect on them."

Delay, he said, "will have a hell of an effect on (the people in the flood zone)."

Kavanaugh said he's not sure how many of his neighbors belong to the Atherton Cove Property Owners Association. He said Freeman called an initial meeting last year, and about 12 or 15 people attended.

Freeman on Monday acknowledged the hardship faced by those saddled with flood insurance. "I think it's wrong to impose the insurance on anybody for nonexistent risk," he said, suggesting that the county, state or federal government should finance that expense.

The second lawsuit was brought by Stockton levee engineer Dominick Gulli. Last year, Gulli submitted a bid to design a Smith Canal fix. When a much larger firm won the bid, Gulli launched a public relations campaign promoting his own plan, which calls for scrapping the gate and instead improving the levee on the north side of Smith Canal all the way to Pershing Avenue.

Asked why why he filed a lawsuit, Gulli said, "I felt that somebody had to do it, being so familiar with the situation."

-- Contact reporter Alex Breitler at (209) 546-8295 or abreitler@recordnet.com. Follow him at recordnet.com/breitlerblog and on Twitter @alexbreitler.

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