Demurrers Answered in Civic Center Septic Ban Litigation

BY BILL KOENEKER

A Malibu Road attorney, who 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, has answered in opposition to the water boards' request for a demurrer from the court.

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 gist of the respondent water boards' general demurrers to the second cause of action is that the Malibu Civic Center septic ban must be a 'legislative act' as an amendment to the Los Angeles Regional Basin Plan by assuming, incorrectly, that the Basin plan is wholly regulatory. Water Boards thus extrapolate that the septic ban resolution being part of a basin plan (a.k.a. 'regulation') are quasi-legislative action, and therefore not amendable to being judicially reviewed on a petition for writ of administrative mandamus. There is no doubt that respondent demurring water boards engaged in what was processed as a 'legislative act' when they amend the Regional Board's LA Regional Basin Plan. It is these erroneously employed quasi-legislative procedures, required by law to be quasi-adjudicatory, that petitioner challenges in her petition for writ of administrative mandamus, as illegal, void and subject being restrained and prevented.

Demurring respondent water boards fail to cite binding authority for their position."

The state attorney general's office, in its first response to the allegations, had 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 sewer lawsuit 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 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 overbroad, 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.

Lavine is demanding a trial by jury.