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Wednesday, June 08, 2011

Local Attorney Takes on Water Boards with Lawsuit over Septic System Ban

• Petition Calls the State’s Action a Regulatory Taking


A Malibu Road attorney 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. The state agencies were all served last week.
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.”
“I have not heard from any of the opposition attorneys yet,” she said, when asked if she had gotten any reaction from the state agencies.
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 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 unsalable 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 the petitioner’s Malibu Road property that discharges failed to meet water quality objectives,” the petition goes on to state.
Levine asserts that allegations that law enforcement activities and law enforcement citations issued for alleged discharges by other properties and other property owners are not a factual basis for law enforcement actions against her property and that the board’s use of alleged wrong- doing of unrelated third parties and other properties is “an irrational basis to engage in law enforcement” against her property.
In her extra-record evidence, Lavine cites the recent U.S. Geological Survey research by John Izbicki.
Lavine is demanding a trial by jury.

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