Lawsuit Challenging Septic Ban Moves Step Closer to Courtroom

• Malibu Road Homeowner Calls RWQCB Action a Regulatory Taking and Demands Jury Trial

BY BILL KOENEKER

A Malibu Road attorney that has filed a lawsuit against the local and state water boards and the California Environmental Protection Agency concerning the Civic Center septic ban, which includes residential areas such as Malibu Road, will have her day in court on October 26.

Attorney Joan Lavine, who owns a home on Malibu Road, and has legally tangled with the city over an unrelated matter with successful results, seeks to have the ban overturned and set aside and is also making a claim that the septic ban has resulted in an inverse condemnation, "due to the unconstitutional regulatory taking…of all viable economic value and use of her substantial property interests in her Malibu road property and seeks the award of reasonable monetary damages."

The state attorney general's office, in its first response to the allegations,  has filed what is called a demurrer.

"A demurrer is appropriate when the complaint does not state facts sufficient to constitute a cause of action against a party," the legal brief from the AG's office states. "When the complaint lacks sufficiency, the court must decide whether there is a reasonable possibility that the plaintiff  may cure the defect by amendment. The petitioner bears the burden of proving such reasonable possibility. Where the petitioner fails to meet this burden, the court may properly sustain a demurrer without leave to amend. In considering this demurrer, the court may accept all properly pleaded material facts in the first amended petition, but not its contentions, deductions or conclusion of fact of law."

Here, a review of the first amended petition demonstrates that the petitioner challenges quasi-legislative actions which cannot be challenged through a petition of writ of mandamus. The defect cannot be corrected by further amendment. Thus, the court should sustain this demurrer without leave to amend."

A prohibition on all Civic Center area septic system including residential areas was approved and adopted by the RWQCB on November 2009 and approved and ratified by the State Water Resources and Control Board on September 21, 2010.

Lavine asserts in her complaint that by doing so the agencies "illegally engaged in a regulatory taking and confiscation of her substantial real property and related interests."

The lawsuit calls the prohibition "an invalid underground regulation and is arbitrary, capricious, unreasonable, over-broad, confiscatory, is an exercise of authority in excess of and without jurisdiction, is a usurpation of power, authority and jurisdiction where respondents have none, is without any factual support, and is invalid as a matter of law and therefore is null and void."

Besides monetary damages, Lavine is seeking a writ of mandate and or prohibition restraining the water boards from enacting such "a quasi-legislative action."

Lavine said she was not notified that her property impermissibly discharged water, pollution or contaminants, violated any health, safety, environmental or clean water laws or in any way was non-compliant with any law, rule or regulation over which the water boards have jurisdiction.

She indicated in the legal brief she has not been notified that her property in any way created or caused a nuisance. She has never been cited for any said potential hazards described, she wrote in the lawsuit.

She said the water boards' actions make her property unsaleable and unmarketable and constitutes a per se regulatory taking.

"No evidence was received into the record at the November hearing that pollution was/is generated at the Lavine Malibu Road property. No evidence supports a finding as applied to petitioner's Malibu Road property that discharges failed to meet water quality objectives," the petition goes on to state.

In her extra-record evidence, Lavine cites the recent U.S. Geological Survey research by John Izbicki.

Lavine is demanding a trial by jury.