Lawsuits and appeals filed on behalf of Los Osos residents adversely impacted by the Los Osos Community Services District Sewer Project:
- CASE appeals the San Luis Obispo County Planning Commission decision of July 24, 2003 to approve of the Los Osos Community Services District Development Plan/Coastal Permit
- Concerned Citizens of Los Osos appeals the San Luis Obispo County Planning Commission decision of July 24, 2003
- Cal Cities challenges LOCSD Sewer Discharge Plan (for PDF copy of Cal Cities lawsuit, please click here).
- Petition for Writ of Mandate filed by local Los Osos residents against the California Coastal Commission, San Luis Obispo County and LOCSD.
- Federal lawsuit filed by local Los Osos residents against LOCSD in the United States District Court for the Central District of California Western Division alleging LOCSD acted to violate the Constitutional rights of plaintiffs.
Alexander T. Henson SB#53741
27880 Dorris Dr., Suite 120
Carmel, Calif. 93923
(831) 626-8686/(831) 626-8685 FAXAttorney for Petitioner
STATE OF CALIFORNIA SUPERIOR COURT
IN AND FOR THE COUNTY OF SAN LUIS OBISPOCITIZENS FOR AFFORDABLE AND SAFE ENVIRONMENT, Plaintiff, vs.CALIFORNIA COASTAL COMMISSION, Respondent
SAN LUIS OBISPO COUNTY, LOS OSOS COMMUNITY SERVICES DISTRICT, TRI W ENTERPRISES INC., Real Parties In Interest
Case No.: PETITION FOR WRIT OF MANDATEComes Now Petitioner to allege as follows:
I
Petitioner, Citizens for Affordable and Safe Environment, is an unincorporated association made up of individuals who reside in the unincorporated community of Los Osos, California. The members of Petitioner reside in Los Osos and are thus vitally interested in any new sewage treatment facilities for their property, or the property that they rent. The members of Petitioner are concerned about any adverse impacts to the environment of Los Osos, and particularly, the loss of rare and endangered plants which make Los Osos unique. Petitioner participated in the administrative proceeding contested herein on behalf of its members all of whom are affected financially and environmentally from the proposed sewage treatment facilities being planned at the site that is the subject of the Coastal Commission's action. Petitioner has exhausted its administrative remedies and is beneficially interested in compliance with the Coastal Act by the Coastal Commission. Petitioner is adversely affected and aggrieved by the decision of the Coastal Commission and will suffer irreparable injury to its interest in preserving the environment of Los Osos by the destruction of the endangered species and their habitat approved by the Coastal Commission in its decision contested herein.
II
The Respondent California Coastal Commission has jurisdiction to review and approve all land development along the coast of California, including the property which is the subject of this proceeding.
III
Real Party In Interest San Luis Obispo County is sued herein on the basis that it has an interest in this proceeding because it approved the Local Coastal Plan Amendment at issue in these proceedings. This petition does not seek to challenge the County's decision to approve the LCP amendment, but rather challenges the Coastal commission's decision in which the County has an interest.
IV
Real Party In Interest Los Osos Community Services District is named as a real party in interest because it is the agency which will develop the sewage treatment plant on the site designated by the Coastal Commission's decision contested herein.
V
Real Party In Interest Tri W Enterprises Inc. is named as a real party in interest because it is the landowner whose property is benefited by the LCP amendment at issue herein.
VI
On or About August 8, 2002, Respondent did review and approve an amendment to the Estero Area Plan portion of the San Luis Obispo County Local Coastal Plan. The amendment authorized a "public facilities" designation on the property owned by Real Party In Interest Tri-W. The amendment further authorized that public facilities could be approved that conform to special use standards and particularly wastewater treatment facilities development to implement the mitigation measures contained in the Final Environmental Impact Report for the Los Osos Wastewater Treatment Project certified by Real Party In Interest Los Osos Community Services District.
VII
Respondent found in reviewing and approving the amendment that there exists on the property rare and endangered plant species. Such a finding qualifies the subject property as an environmentally sensitive habitat area (ESHA). Pursuant to Public Resources Code §30240 only uses dependent on an environmentally sensitive habitat area can be approved for development within an ESHA. There is no substantial evidence in the record that the public facilities approved for the subject property and ESHA site are dependent upon ESHA resources. Consequently, Respondent abused its discretion and acted contrary to law in approving the LCP amendment at issue herein.VIII
In approving the LCP amendment, Respondent found that all sites available for a sewage treatment plant required by Real Party In Interest Los Osos Community Services District contain ESHA resources, and therefore Respondent was allowed to designate the subject site for the sewage treatment plant notwithstanding the ESHA. There is no substantial evidence in the record that this is true. There is substantial evidence in the record that there exist possible sites for a sewage treatment plant east of the community of Los Osos which does not contain ESHA qualities. Consequently, Respondent abused its discretion and acted contrary to law in approving the LCP amendment at issue allowing public facilities in an ESHA that are not dependent upon ESHA resources.
Wherefore Petitioner prays as follows:
1. For alternate and peremptory writs of mandate compelling Respondent to set aside its approval of the LCP amendment granted to Real Parties In Interest on August 8, 2002;
2. For costs of suit including reasonable attorneys fees;
3. For such other and further relief as the court deems just and proper.Alexander T. Henson SB#53741
VERIFICATION
I, Alfred Barrow, declare as follows:
I am the president of Citizens for Affordable and Safe Environment, an unincorporated association, and am authorized to make this verification upon its behalf. I have read the foregoing PETITION FOR WRIT OF MANDATE and am familiar with the contents thereof which are true.
I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct. Executed this 4th day of October, 2002, at San Luis Obispo, California.
_______________________
Alfred Barrow
MATTHEW J. NASUTI, State Bar No. 91902
Law Office of Matthew J. Nasuti
12802 Valley View Street, Suite 9
Garden Grove, California 92845
Telephone: (714) 373-2529
Facsimile: (714) 373-1380Attorney for Plaintiffs
IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
ULRICH E. KELLER, CORINA FERNANDEZ, HENRY C. "BUDD" SANFORD, JULIA K. KEEFE, KENNETH DIEFENDERFER, PATRICIA A. WRIGHT, RACHEL GRANNIS, ALEIDA L. LUND, THOMAS AQUINAS SALMON, LINDA OWEN, NORMA J. UEHRKE, JANE GROVER-SMITH, DONNA LEE HEROLD, ALFRED C. BARROW, MARGARET LUCERO, CYNTHIA MARIE MULLIGAN, and ALICIA DEBACKER, individuals
Plaintiffs,
vs.
LOS OSOS COMMUNITY SERVICES DISTRICT,
a local Government entity,
Defendant.
Case No.: Civ.ORIGINAL COMPLAINT
(1) 42 U.S.C. §1983
(2) 42 U.S.C. §1983
(3) 42 U.S.C. §1983
(4) 42 U.S.C. §1983
Plaintiffs herein file this Original Complaint. Plaintiffs allege and will prove at trial, that Defendant, the Los Osos Community Services District (hereinafter the "District"), has acted to violate the Constitutional rights of Plaintiffs. In summary, Defendant is committing environmental racism by seeking to unnecessarily impose a $100 million sewer project on "selected" portions of the District, which include all the low income and minority areas of the community of Los Osos, while exempting, without justifications, numerous wealthy neighborhoods. This sewer project may force 55% of the targeted community to move out of the area as they cannot afford the proposed assessments, let alone the increased assessments that will be imposed when the District begins to get actual construction bids. The District inexplicably rejected cheaper alternative solutions proposed by others, including the United States Environmental Protection Agency.
The Sewer Project is a gold-plated Cadillac of a solution, which was chosen due to financial and personal conflicts of interest by District officials. It is being rushed forward without waiting to see if federal grant money can be made available. Based on the fact that it will only hook up part of the community, the Sewer Project will not achieve the nitrogen and bacteria reduction goals mandated by the State of California, therefore it will be $100 million misspent. Once the solution fails, there will be no public officials who will accept responsibility for this financial and human nightmare, and there will be no credible legal mechanism to compensate those low income and disabled persons who have been injured by the irresponsible actions and inactions of the District, the County of San Luis Obispo and the California Regional Water Quality Control Board.
The Sewer Project is being employed as a form of urban renewal, to illegally eliminate low income neighborhoods and permit both accelerated development of Los Osos and an overall increase in property values for those who survive and for those who have exempted themselves. Forced relocation of low income groups and the disabled violates public policy and is a human rights violation, in addition to a constitutional violation.
PARTIES
1. Plaintiff, Ulrich E. Keller, resides at 2165 Glenn Street, Los Osos, California. He is a retired inspector for the U.S. Department of Agriculture. He owns his own home, lives within the Prohibition Zone, and is under assessment by Defendant.
2. Plaintiff, Corina Fernandez, resides at 1655 18th Street, Los Osos, California. She is self- employed. She owns her own home, lives within the Prohibition Zone, and is under assessment by Defendant. She cannot afford the proposed assessment and would have to move from Los Osos if the Sewer Project is implemented.
3. Plaintiff, Henry C. "Budd" Sanford resides at 313 Lilac Drive, Los Osos, California. He is disabled. He owns his own home, lives within the Prohibition Zone, and is under assessment by Defendant. He cannot afford the proposed assessment and would have to move from Los Osos if the Sewer Project is implemented.
4. Plaintiff, Julia K. Keefe, resides at 1608 11th Street, Los Osos, California. She is retired. She owns her own home, lives within the Prohibition Zone, and is under assessment by Defendant. She cannot afford the proposed assessment and would probably have to move from Los Osos if the Sewer Project is implemented as the assessment would wreck her current budget.
5. Plaintiff, Kenneth Diefenderfer, resides at 1346 Third Street, Los Osos, California. He is retired. He owns his own home, lives within the Prohibition Zone, and is under assessment by Defendant. He cannot afford the proposed assessment and would have to move from Los Osos if the Sewer Project is implemented.
6. Plaintiff, Patricia A. Wright, resides at 2180 Glenn Stree, Los Osos, California. She is retired. She owns her own home, lives within the Prohibition Zone, and is under assessment by Defendant. She cannot afford the proposed assessment and would have to move from Los Osos if the Sewer Project is implemented.
7. Plaintiff, Aleida L. Lund, resides at 1359 9th Street, Los Osos, California. She works in town, owns her own home, lives within the Prohibition Zone, and is under assessment by Defendant. She cannot afford the proposed assessment and would have to evaluate her options if the Sewer Project is implemented.
8. Plaintiff, Linda Owen, resides at 1935 10th Street, Los Osos, California. She is self- employed, owns her own home, lives within the Prohibition Zone, and is under assessment by Defendant. She cannot afford the proposed assessment, does not know what the final assessment will turn out to be, and would have to evaluate her options if the Sewer Project is implemented.
9. Plaintiff, Rachel Grannis, resides at 1929 10th Street, Los Osos, California. She is self- employed, owns her own home, lives within the Prohibition Zone, and is under assessment by Defendant. She cannot afford the proposed assessment and would have to move if the Sewer Project is implemented.
10. Plaintiff, Thomas Aquinas Salmon, resides at 1618 4th Street, Los Osos, California. He is employed by Granite Construction, owns his own home, lives within the Prohibition Zone, and is under assessment by Defendant.
11. Plaintiff, Norma J. Uehrke, resides at 596 Lilac Drive, Los Osos, California. She works part- time, but basically lives on a fixed income. She owns her own home, lives within the Prohibition Zone, and is under assessment by Defendant. She cannot afford the proposed assessment and is not sure how she could pay the costs if the Sewer Project is implemented.
12. Plaintiff, Jane Grover-Smith, resides at 740 Highland Drive, Los Osos, California. She is retired. She rents a home within the Prohibition Zone, which is under assessment by Defendant. She cannot afford the proposed assessment, which she expects to be passed through to her and she would have to move from Los Osos if the Sewer Project is implemented.
13. Plaintiff, Donna Lee Herold, resides at 1760 Donna Avenue, Los Osos, California. She is retired. She owns her own home, lives within the Prohibition Zone, and is under assessment by Defendant. She cannot afford the proposed assessment and would have to move from Los Osos if the Sewer Project is implemented.
14. Plaintiff, Alfred C. Barrow, resides at 700 El Morro Avenue, Los Osos, California. He is a disabled veteran. He rents a home within the Prohibition Zone, which is under assessment by Defendant. He cannot afford the proposed assessment, which he expects to be passed through to him and would have to move from Los Osos if the Sewer Project is implemented
15. Plaintiff, Margaret Lucero, resides at 1195 San Luis Avenue, Los Osos, California. She is retired. She owns her own home, lives within the Prohibition Zone, and is under assessment by Defendant. She cannot afford the proposed assessment and would have to move from Los Osos if the Sewer Project is implemented.
16. Plaintiff, Cynthia Marie Mulligan resides at 1452 6th Street, Los Osos, California. She is disabled. She rents a home within the Prohibition Zone, which is under assessment by Defendant. She cannot afford the proposed assessment, which she expects to be passed through to her.
17. Plaintiff, Alicia Debacker, resides at 2036 Ferrell Avenue, Los Osos, California. She is a widow living on Social Security. She owns her own home, lives within the Prohibition Zone, and is under assessment by Defendant. She cannot afford the proposed assessment.
18. Defendant, the Los Osos Community Services District, is a local government entity formed in November 1998 pursuant to Government Code §61110. It is managed by five-member Board of Directors and has its principal place of business at 2122 9th Street, Los Osos, California, 93402.
JURISDICTION
19. This Court has original subject matter jurisdiction over 42 U.S.C. § 1983 causes of action. Plaintiffs' claims arise from the same factual circumstances and this court represents the proper venue since all the events in this case took place in San Luis Obispo County and all parties reside and conduct business in San Luis Obispo County.
FACTS
20. The community of Baywood Park/Los Osos, California (hereinafter "Los Osos") is unincorporated and located on the coast, in San Luis Obispo County. It contains approximately 14,000 residents, which have a mix of incomes (low, middle and wealthy). All the homes are serviced by some form of septic system to handle sewage and wastewater. The community is surrounded on one side by water, one side by parkland and on two sides by agricultural lands. There are also several horse farms within the community. The community suffers from a number of stormwater runoff and standing water problems, which are exacerbated by the fertilizer content of the stormwater due to agricultural and horse farm sources. This problem is not currently being addressed. The community is also facing a build-out proposal which would increase the population of the community by 50%, while at the same time drinking water supplies are shrinking, thus raising the specter of having to import water, at a cost not yet calculated. An overall problem is the failure to have a comprehensive and credible water management plan. Beneath the community are several groundwater aquifer zones. There is a dispute as to whether there are two separate aquifers with no hydraulic connection or whether it is generally one aquifer with an upper zone with slow vertical diffusion rates to the lower zone.
21. There is an upper aquifer which is approximately 150 feet thick. This aquifer is fed or recharged by both surface infiltration from above and from surface infiltration from up- gradient sources outside the community which laterally flow into the aquifer. In the upper zone of this aquifer, there are several locations where levels of nitrates and bacteria are above the U.S. EPA Maximum Contaminant Levels. There is also at least one localized MTBE spill zone from the old Chevron station on Los Osos Valley Road. Sources for the nitrates include natural nitrogen in the soil, plants, livestock and horses, agricultural runoff, and septic tanks. Several wells in the area are unsealed and located at ground-level. They are suspected of being conduits of surface nitrates and manure which then flow directly into the groundwater.
22. There is also a lower aquifer which is used as a source of community drinking water. This aquifer is considered uncontaminated and its levels are falling due to residential pumping. This lowering of the water table is allegedly permitting salt water intrusion, which, if true, would constitute a serious problem.
23. In 1983, the Central Coast Regional Water Quality Control Board, located at 81 Higuera Street, Suite 1400, San Luis Obispo, California (hereinafter the "RWQCB"), concluded a review of water-shed needs for Morro Bay, California and determined that nitrates were seeping into Morro Bay and represented an environmental concern that needed to be abated. Part of the problem was agricultural runoff entering the various creeks that feed into the Bay. These creek discharges have yet to be addressed. The RWQCB determined that a source of some of the nitrates was the septic tanks employed by the 14,000 or so residents of the community of Los Osos. This conclusion was arrived at despite the October 6, 1982 report of San Luis Obispo County Chemist Percy Garcia that refuted the claims that urbanization in the area was resulting in a correlated increase in groundwater nitrate levels. The RWQCB based its decision on sample results from a series of groundwater wells installed with poor casings and/or no seals. These are called Class V wells by U.S. EPA. The U.S. EPA Office of Drinking Water has warned that these wells pose a significant threat to ground water supplies as they serve as a conduit for surface contamination into the aquifer. The wells also violate California Standards, as issued in response to California Water Code §13800 et seq. The RWQCB acknowledged on August 28, 1985 that two of its ten wells may be conduits for contamination. Despite this admission, closure of the wells was never ordered. The RWQCB and San Luis Obispo County well data continues to be biased as some of the data is surface water contamination entering the defective wells rather than actual groundwater data.
24. The RWQCB decided that the solution to the nitrate problem would be for the community of Los Osos to abandon its septic systems and install conventional sewers and operate a conventional sewage treatment plant. However, when it came time to issue its Order, the RWQCB elected to impose the Sewer Project on only part of the community. It apparently used some partial groundwater surface data and then drew lines throughout the community as to who would be subject to the Sewer Project and who would not be. Until this sewer was installed and the treatment plant running, there would be a building moratorium within the targeted portion of Los Osos, which became know as the "Prohibition Zone" and is reflected in Exhibit 1. This Prohibition Zone is based on poor science, inadequate data and a lack of common sense. The RWQCB does not have a current potentiometric surface map covering all four seasons which will support these arbitrary Prohibition Zone boundaries. It is undisputed that the "exempt" Martin Tract (Exhibit 1) sits in an area where groundwater is 25 feet below grade surface. Other areas, along South Bay Boulevard have groundwater at 25-50 feet. Using the RWQCB's own position that some septic systems extend up to 25 feet deep, the separation for many of the homes outside the Prohibition Zone violates the RWQCB's required 30 feet.
25. The RWQCB and the District also assume that those outside the Prohibition Zone, who do meet the 30 foot separation requirement, are utilizing and maintaining a properly working septic system. In fact, some of these parcels may well be dumping directly into holes in the ground. There is no provision currently to inspect them or to regulate refuse from the horse farms. While it is true that as one progresses up the eastern and southern hills, it will at some point will become both unnecessary and too expensive to include those homes within the Sewer Project, but a large number of homes remain on the valley floor and must be included into the Project. Therefore, switching part of the community to a conventional sewer, while putting no controls on half of the area that feeds the aquifer, is a wasted exercise, lacks a rational basis, is discriminatory, and will not meet the RWQCB's goal for nitrogen reduction.
26. The boundary lines are suspect and lack a rational basis as they target all the low income and median income areas while exempting many wealthy neighborhoods, some of which are situated at the same topographical level and/or groundwater levels as those within the Prohibition Zone. Attached as Exhibits 3 and 4 contain some examples.
27. In late 1994, the RWQCB retained consultant Metcalf & Eddy to investigate the Los Osos area. Its March 1995 report is inconclusive. Metcalf & Eddy concluded that nitrate levels in shallow groundwater "differ widely within the community" (showing no uniform source). It also failed to find a correlation between population increase and nitrate levels. On March 9, 1995 the RWQCB issued its own report on Baywood Park/Los Osos. It announced that a 30-foot separation between a population using septic systems and groundwater was necessary (even though no such requirement was ever formally promulgated). The RWQCB, without providing a factual basis, then went on to find that 33% of Baywood Park / Los Osos was in violation of this new "guidance."
28. At the November 17, 1994 RWQCB meeting, the San Luis Obispo County Nitrogen Study Advisory Group's report was presented which concluded that leachate from Los Osos septic systems was not significantly impacting groundwater. The RWQCB, in its report, announced that it wanted to "avoid ongoing bickering over details." The RWQCB decided that it was not to let facts or mere details interfere with its decision and it went on to reject the County Study.
29. The RWQCB also elected to reject the June 30, 1994 report it commissioned from the University of California - Davis which concluded that it is seldom possible to determine the amount or percentage of nitrates that can be attributed to any one source (therefore determining a "primary" source for the nitrates would not be scientifically defensible). The RWQCB then reverted to its old position that Los Osos septic systems are the primary source of nitrate contamination in the upper aquifer (evidence notwithstanding).
30. The RWQCB's position violates California State Water Resources Board policy as set forth in March 1980, which requires that evidence must "clearly and explicitly support" any claim that on-site waste-water systems are a source of water pollution.
31. In response to the RWQCB's position, the County of San Luis Obispo elected to proceed forward with a conventional sewer and sewage treatment plant for Baywood Park/Los Osos. At the time, the area was called Community Service Area No.9.
32. In November 1998, the Baywood Park / Los Osos community voted to reject the County's conventional sewer and sewage plan and instead voted to form their own Community Service District (which is the Defendant in this action) and tasked it with finding alternatives to the conventional sewer proposal.
33. The District, as one of its first acts, hired Oswald Engineering Associates, Inc. to study alternatives to the conventional sewer proposal. Its report was issued on January 31, 2000 and supported the community's desires. Those recommendations were rejected by the RWQCB which on October 27, 2000 issued to the District, Cease and Desist Order No. 00-131. The RWQCB conveyed to the District that it wanted a conventional sewer and sewage plant. At several Los Osos town meetings in 2000 and 2001, Sorrel Marks and Gerhardt Hubner of the RWQCB, threatened $10,000 per day fines on both the District and individual homeowners if the Sewer Project was not expedited! This latter threat caused widespread commotion and resulted in a District legal memorandum to the community concurring that the RWQCB did have the authority to impose fines on individual homeowners.
34. While the RWQCB has authority to order an abatement of discharges that exceed certain regulatory levels, it does not have the authority under California Water Code §13301 to order a specific construction program utilizing a specific remedy. In addition the RWQCB's actions violated California Water Code §13307 which mandates that the RWQCB utilize "the most cost-effective methods" for abating contamination, which it failed to comply with.
35. The District, in the face of the RWQCB's Order, elected in early 2001 to return to the conventional sewer and sewage treatment plant than the County had wanted, even though the community had overwhelmingly voted to reject this option. The District's acquiescence to the RWQCB's insistence on a conventional sewer system is suspect due to conflicts of interest. For example, the District staff includes District Engineer John L. Wallace. When the District issued its scope of work for the Sewer Project engineering contract, it mandated that the winning contractor agree to subcontract a substantial portion of the work back to District Engineer John L. Wallace, through his company John L. Wallace & Associates. While it is generally acceptable to require a developer or contractor to pay for the costs of the local government staff on a project, it is not acceptable to require them to hire companies owned and operated by government employees. The District Engineer should be overseeing the consultant, not working for the consultant and under the consultant's direction as a subcontractor.
36. The winning contractor for the $10 million + engineering portion of the Sewer Project is Montgomery Watson Corporation of Walnut Creek, California, which as part of its winning bid, proposed to subcontract with Pandora & Associates for "public relations" work. Pandora & Associates is owned by former District Director and District Wastewater Committee member Pandora Nash-Karner. (Text deleted per request of named party.) Again, while it is customary for local government agencies to have their contractors hire locally, it is not customary for them to hire companies owned or managed by that government agency officials or spouses of agency officials.
37. After electing to go forward with the Sewer Project. The District, in June of 2001 voted to begin the punitive assessments necessary to fund this $100 million project.
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