Local attorney Joan Lavine is suing several state agencies over the septic systems in the Civic Center area. Lavine seeks monetary damages and to have the ban overturned.
By Knowles Adkisson / The Malibu Times
A hearing is scheduled Oct. 26 for a lawsuit filed by local attorney Joan Lavine to have the Civic Center septic ban overturned.
Lavine, who lives on Malibu Road within the ban area, has brought suit against the regional and state water boards, the State of California and the California Environmental Protection Agency. Lavine argues that the ban has destroyed the value of her property, and that the state agencies did not possess the authority to enact the ban but took the “quasi-legislative action” anyway. She is also suing for monetary damages.
In November 2009, the Los Angeles Regional Water Quality Control Board (RWQCB) instituted a prohibition on the permitting of septic systems in the commercial areas of the Civic Center and certain nearby residences, due to its contention that runoff from septic systems was causing contamination in the Malibu Lagoon and the near shore ocean. The ban was approved and ratified in September 2010 by the State Water Resources Control Board.
Lavine in her lawsuit notes that her property has never been cited for illegally discharging contaminated water or wastewater, nor for any health, safety or environmental violations. Lavine told The Malibu Times that RWQCB representatives acknowledged to her that her property has not been cited for any contamination.
The state attorney general’s office has filed to dismiss the lawsuit, arguing the petition for a writ of mandate filed by Lavine to overturn the water boards’ “quasi-legislative action” is insufficient. A writ of mandate is a court order to a government agency, including another court, to follow the law by correcting its previous actions or to cease illegal activities.
“The petitioner challenges quasi-legislative actions which cannot be challenged through a petition of writ of mandamus,” states the attorney general.
Los Angeles Superior Court Judge Ann Jones will decide Oct. 26 at the Stanley Mosk Courthouse in downtown Los Angeles whether to dismiss the lawsuit. Deputy Attorney General Jennifer Novak, who is representing the attorney general’s office in the lawsuit, characterized the Oct. 26 hearing as a formality and expected the case to continue from there.
Meanwhile, Frances McChesney, attorney for the RWQCB, disputes Lavine’s claims.
“The water board doesn’t agree with her allegations,” McChesney said. “We believe we followed the proper procedure and we have the legal authority [to enact] the prohibition.”
Lavine said she had spoken only briefly with opposition attorneys about procedure.
“It is not without collegiality, but this is a war,” Lavine said. “I want to win my writ and I think I can.”
Lavine filed her lawsuit at the beginning of June, about six weeks before the City of Malibu and RWQCB on July 14 approved a Memorandum of Understanding to build several centralized wastewater treatment facilities in the Civic Center area. Estimates for cost of the first facility, due to be constructed by 2015, range from $30 million to $52 million. It will be funded by commercial property owners. Certain residential property owners in the area would be required to hook up to a second facility by 2019, to be paid for through an assessment district.
Lavine, who said she does not plan to sue the city at this point, called the agreement “an egregious overreaching by the governmental authorities.” She said if the governmental agencies were determined to have sewer systems in Malibu they should find a way to pay for it them themselves.
“I think it’s a vicious burden on people of limited resources,” Lavine said. “And it has already resulted in making property a very risky development in the area, because of the potentially exorbitant cost of installing the sewer system.”
Instead, Lavine said technology has advanced to the point to make on-site wastewater treatment systems viable. She said they would be safer than a central sewer system, which if damaged during a landslide or major earthquake would be hard to contain and clean up.
Lavine, who said she has either lived or owned property in Malibu since the 1940s, characterizes herself as a slow-growth advocate. She feels the Civic Center facilities are only the beginning.
“Certainly if this is allowed to go forward we are going to see sewering throughout Malibu, in my opinion,” Lavine said. “Everyone is going to be burdened.”
Lavine also cited as additional evidence to support her case against the state agencies the recent study by the United States Geological Survey and hydrologist John Izbicki, who led a study commissioned by the city, that indicated that bird excrement, not human bacteria from septic systems, and other factors are primarily responsible for contamination in the Malibu Lagoon and local ocean water such as at Surfrider Beach.