Lafayette creek threatens home as backyard washes away

A family’s backyard is slowly crumbling away into a creek and they are tied up in a lawsuit with Contra Costa County over who should maintain the deterioration.

Brian and Emily Shenson said the recent January storms have made the problem worse and put their home and family at risk. Emily is concerned her home may suffer the same fate as two homes in Orinda that recently slid down a hillside due to the saturated ground.

Over the past six years, the creek behind their house has widened and eroded away at their property line. The family lives near Brookwood Park in unincorporated Lafayette. The creek is currently about 30 feet wide.

"When we bought this house you could step across the creek," Brian Shenson said.

January’s storms were the tipping point. Their backyard is now washing away.

"We were concerned the fence would fall in," he said. "We had to remove the fence and trees at our own expense."

He said the problems started when there was a failed spillway in the creek behind the home. It caused concrete to fall and block the flow of water, creating a scour hole. The Shensons documented the damage in photographs in 2017 and used those photographs when they sued Contra Costa County for failing to maintain the spillway and drainage easements, which they said led to the destruction of their property.

In 2021, a judge ruled in the county's favor and said there was no evidence that the county exerted control over or assumed responsibility for the creek or storm drain system. The Shensons are appealing that ruling and believe the judge ignored evidence. The family points to a 1975 document they found during the litigation process that they said the county signed. They said they believe that document proves the county is responsible for maintaining the drainage system.

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A spokesperson for Contra Costa County confirmed a judge ruled in the county’s favor that they have no control over the creek. Since the case is under appeal, they county can’t comment on pending litigation.  The family has called a structural engineer and are waiting on an emergency permit to build a retaining wall to protect their land from further erosion. A wall can only be built if they have enough money, permit approval from various agencies, and agreement from neighbors to work on their property.

Estimates for a retaining wall are upwards of a quarter of a million dollars.

"Our engineer said they do projects like this, but never for property owners," Brian said. "This is work done by public agencies."

The family said a wall is well out of their means, but while they can’t afford to fix the problem, they also can’t afford not to. The family hopes the county recognizes it has an obligation to address the damage done before their home is at risk of falling down into the creek.

"If we don't settle or win. It will financially sink us," Emily Shenson said. "It should have been taken care of before we lost our land, before we lost our trees, before we lost our hillside."