Malibu Road Attorney Continues Solo Effort to Take Down Septic Ban

• Recent Pleading Amendment Allowed

BY BILL KOENEKER

A longtime local resident and private attorney, who filed a lawsuit against the local and state water boards and the California Environmental Protection Agency concerning the Malibu Civic Center septic ban, was able to file an amended pleading at the trial court level for her third cause of action for inverse condemnation.

She had previously filed a notice of appeal, but the CEPA and the state have successfully filed demurrers at the appellate level.

Attorney Joan Lavine, who owns a home on Malibu Road, got tangled up in the trial court over a set of procedural issues and is now appealing the lower court’s ruling. She 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.”

Lavine said she was “OK” with her current progress in the complicated litigation because she was allowed to amend the pleading for the inverse condemnation.

A prohibition on all Civic Center area septic systems, 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 Sept. 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 re?lated 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.”