Resolution No. 2054 i _.
WJML:RJH:pn 12/15/76/20
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RESOLUTION NO. v o�y
A RESOLUTION DETERMINING TO HOLT) IN ABEYANCE FURTHER
PROCEEDINGS UNDER ASSESSMENT AND ASSESSMENT BOND ACTS
FOR ACQUISITIONS AND IMPROVEMENTS HERETOFORE ORDERED
TO BE MADE TO PROVIDE SANITARY SEWER•SERVICE TO THE
FALLEN LEAF LAKE AREA, DETERMINING TO REFUND TO PROPERTY
OWNERS AMOUNTS HERETOFORE PAID BY THEM UPON ASSESSMENTS
LEVIED IN SAID PROCEEDINGS (WITHOUT PREJUDICE AND SUB-
JECT TO PAYMENT THEREOF IN THE EVENT SAID PROCEEDINGS
ARE NOT ABANDONED) AND DETERMINING THE BASIS UPON WHICH
SAID PROCEEDINGS WILL BE EITHER ABANDONED OR SAID ABEY-
ANCE THEREOF DISCONTINUED WITH FURTHER PROCEEDINGS
BEING TAKEN TO IMPLEMENT COMPLETION OF SAID ACQUISITIONS
AND IMPROVEMENTS HERETOFORE ORDERED)
ASSESSMENT DISTRICT 1971 -1
[FALLEN LEAF LAKE AREA]
RESOLVED, by the Board of Directors of the South Tahoe
Public Utility District, El Dorado County, California, that
L.
WHEREAS, in proceedings by this Board under and pursuant
to Resolution No. 1676, A Resolution of Intention to Acquire and
Construct Improvements, adopted on April 6, 1972, a public hearing
was duly held on July 23, 1973, and satisfactory bids having been
received for construction of the proposed improvements for pro-
viding sanitary sewer service to the Fallen Leaf Lake area,
Resolution No. 1830, A Resolution and Order Adopting Engineer's
Report, Confirming the Assessment and Ordering the Work and Acqui-
sitions, was adopted; thereafter the assessment and diagram were
duly recorded and filed, a notice of assessment was duly recorded
and notices to pay assessments were duly published and mailed;
WHEREAS, during the period within which said assessments
were permitted to be paid, in whole or in part, payments upon
thirteen assessments were received, the total amount of which was
$68,737.30, said assessments and the amounts paid thereon, respec-
tively, being shown on Exhibit A attached hereto and made a part
hereof; as of November 30, 1976, the interest earned on said funds
was $17,695.56;
WHEREAS, the actions of this Board in conducting said
proceedings have been solely for the purpose of enabling the
property owners and residents of the Fallen Leaf Lake area to
comply with Sections 13950 and 13951 of the Water Code of the
State of California and with the mandates, as understood by this
Board, of the Lahontan Regional Water Quality Control Board (being
the agency responsible for enforcement of said sections), said
mandates appearing to this Board to have been evidenced by the
following:
(a) appearance of said Regional Board's representatives
at the public hearings held by this Board on July 3, 1968, and
July 23, 1973, for annexation of the Fallen Leaf Lake area and
for final approval of the Engineer's Report in said improvement
and assessment proceedings, respectively, such representatives at
said hearings having endorsed said annexation and the sewering of
said area in the manner provided in said Engineer's Report (excerpts
from the remarks of said representatives at said July 23, 1973,
hearing are attached hereto marked Exhibit B, and made a part
hereof);
(b) denial by said Regional Board, after public hearings,
of formal requests that said area be issued a variance or exemption
from the sewering requisite to compliance with said Sections 13950
and 13951 of the Water Code, once in 1972 prior to said public
hearing held by this Board in 1973 and once after said hearing and
commencement of the litigation hereinafter referred to; and
"sre (c) obtaining of an injunction by the Attorney General
of the State of California, on behalf of said Regional Board, from
the Superior Court in and for the County of El Dorado, State of
California, prohibiting occupancy of buildings at Fallen Leaf Lake
that are not in compliance with said Sections 13950 and 13951;
WHEREAS, in conducting said proceedings for sewering the
Fallen Leaf Lake area this Board has exerted every effort to
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consider the wishes, desires and concerns of the property owners
in said area, including the following:
(a) innumerable conferences and meetings of this
Board and this District's staff and engineers with property owners
and their representatives (including Stanford Sierra Camp, Fallen
Leaf Lodge and the Fallen Leaf Lake Protection Association) which
were held at South Lake Tahoe, Redding and in the Bay Area, among
others and continued throughout the design stage of the proposed sewer
system and until said public hearing thereon in July, 1973;
(b) consideration, review and study of property owner
proposals for alternate plans for sewering the Fallen Leaf Lake
area and of property owner proposals for changes and modifications
in the system being designed by the District's engineers;
(c) holding of a special informational meeting for
all property owners in March, 1972, at the Airport Marina Hotel in
Burlingame; and
(d) delay in setting the public hearing between August,
1972, when the completed Engineer's Report was presented to this
Board, and July, 1973, during which time this District processed
an application for grant funds, a summary report thereon submitted
to this Board being attached hereto marked Exhibit C and made a
part hereof;
WHEREAS, on August 14, 1973, an action was filed in the
Superior Court of the State of California for the County of
El Dorado, Case No. 22677, in which plaintiffs were:
NW FALLEN LEAF PROTECTION ASSOCIATION, an
unincorporated nonprofit association,
individually and on behalf of all
assessees designating said association
as their spokesman in the assessment
proceedings subject of this action;
STANFORD ALUMNI ASSOCIATION, a nonprofit
corporation; WILLIAM P. CRAVEN, doing
business as FALLEN LEAF LODGE; HARRIET F.
CRAVEN; FRANCIS I. P. STREET; all
plaintiffs individually and on behalf of
all others similarly situated,
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and defendants were:
SOUTH TAHOE PUBLIC UTILITY DISTRICT, a
municipal utility district of the State
of California; STATE OF CALIFORNIA WATER
RESOURCES CONTROL BOARD, LAHONTAN REGIONAL
WATER QUALITY CONTROL BOARD; COUNTY OF EL
DORADO, acting by and through the County
of El Dorado Department of Environmental
Health; ROBERT KARRISH; DOE I - DOE X;
WHEREAS, in said action, plaintiffs challenged various
aspects of said assessment proceedings conducted by this District
and the environmental proceedings conducted in connection therewith;
WHEREAS, on application of plaintiffs, said Court temporarily
restrained this District from entering into a contract for construc-
tion of the sewer system improvements ordered by this Board to be
made by said Resolution No. 1830, and, therefore, the favorable
bid received for said construction work was lost;
WHEREAS, on September 23, 1976, said Court entered its
judgment in said Case No. 22677 in favor of this District in all
respects, a copy of which, including Findings of Fact and Conclu-
sions of Law, is attached hereto marked Exhibit D, and made a part
hereof;
WHEREAS, in said Case No. 22677, the defendant State of
California Water Resources Control Board, Lahontan Regional Water
Control Board, filed a cross - complaint seeking an injunction to
prohibit occupancy of buildings at Fallen Leaf Lake that are not
in compliance with said Sections 13950 and 13951 of the Water
Code; said injunction was granted by said Superior Court and plain-
tiffs Fallen Leaf Lake Protection Association, et al., appealed
rr►
therefrom to the Court of Appeals of the State of California,
Third Appellate District, which Court, on September 1, 1976,
affirmed the judgment entered by the Superior Court; a copy of
said Appellate Court's decision is attached hereto, marked Exhibit
E and made a part hereof;
4
‘rrf WHEREAS, CSO International, Inc., Concord, California,
has prepared for the Fallen Leaf Lake Protective Association a
Fallen Leaf Lake Project Report, the purpose of which "is to
develop, evaluate and recommend feasible waste management alterna-
tives for the southeast area of Fallen Leaf Lake "; and a draft of
said Report, dated March 1976, was reviewed by this District's
Engineer; and, based upon his report thereon to this Board at its
meeting on April 15, 1976, this Board determined that the alterna-
tives proposed therein were unsatisfactory to this District;
WHEREAS, a draft of said report, dated July, 1976, "discarded"
alternatives proposed in the March Report which involved "leach
field disposal of 'grey water' wastes "; on July 9, 1976, said
Lahonton Regional Water Quality Control Board gave notice of a
public hearing on July 22, 1976, with respect to the proposal of
the said Association to comply with Sections 13950 and 13951 of
the Water Code "through utilization of self- contained toilets and
a grey water export line to" this District's sewerage system; and,
at this Board's meeting on July 15, 1976, a CSO representative
explained what was in the July Report and both he and this Dis-
trict's Engineer agreed that they should meet to discuss the
current CSO proposal before this Board further considered same,
and a representative of said Regional Board advised that this
District would have to be satisfied with the plan of said Association;
WHEREAS, on July 22, said Regional Board approved in concept
the CSO proposed bifurcated system, and directed the Attorney
ire General for the State of California to take appropriate actions
to enforce Water Code Section 13951; on August 11, 1976, a meeting
of CSO engineers, this District's Engineer and a representative
of the Forest Service was held, at which additional data, includ-
ing preliminary plans, were requested by this District's Engineer;
such data were received on September 17, 1976, and this District's
Engineer reported to this Board on the system most recently
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proposed by CSO, the bifurcation, i.e., separation, of wastes
having been abandoned;
WHEREAS, said report, dated October 6, 1976, was presented
to this Board on October 7, at which time the attorney for said
Association had no comments to make and a representative of said
Regional Board expressed concern that construction of the system
by a Fallen Leaf Lake entity would take considerably longer than
if this District constructed it; thereafter, at a special meeting
on October 13, 1976, this Board considered the aforesaid report
by the District's Engineer, together with written comments thereon,
dated October 11, 1976, prepared by the aforesaid attorney for
said Association after consultation with CSO, which report and
comments are attached hereto marked Exhibits F and G and made a
part hereof, and this Board was advised by representatives of the
staff of said Regional Board and the U.S. Forest Service that they
approved the CSO plan; it was noted by members of this Board that
this District could be liable as the operator and discharger in
the event of failures of the CSO system, that the efficacy of such
system was basically an engineering judgment, that the District
Engineer has the expertise that the Board members do not have, and
that this District has enough trouble meeting requirements of the
regulatory agencies without assuming responsibility for an experi-
mental, unproven system in the absence of a favorable recommendation
by the District Engineer; and the District Engineer advised that
he does not know if this CSO system will or will not work, and
that he cannot recommend that the Board construct and /or operate
and maintain it;
WHEREAS, following a public hearing on October 28, 1976,
said Regional Board adopted its Resolution No. 76 -14 relating to
said Association's proposed plan for sewering the Fallen Leaf Lake
area and export of sewage therefrom to this District's system, a
copy of which is attached hereto marked Exhibit H and made a
part hereof;
6
` Y
WHEREAS, the legislature of the State of California has,
subsequent to said CSO July Report, adopted special legislation
permitting formation of a Resort Improvement District in the
Fallen Leaf Lake area, as recommended in said report, notwith-
standing said legislature's enactment a good many years ago
terminating the power to form such districts;
WHEREAS, by reason of (a) adoption of Resolution No. 76 -14
by said Regional Board on October 28, 1976, wherein it altered
its July 22 direction to the Attorney General to take appropriate
actions to enforce Water Code Section 13951 (at which time the
aforesaid appeal from said Superior Court injunction had not yet
been decided) to a direction to its Executive Officer to request
the Attorney General to vigorously enforce the injunction in the
event any portion of the time schedule listed in said resolution
(for implementation of the CSO plan) is not met by the Fallen Leaf
Lake area, (b) the fact that said schedule does not contemplate
"full compliance" until October 15, 1978, and (c) said recent
special legislation enables said area to form the Resort Improve-
ment District contemplated by said CSO plan, it appears to this
Board that despite the aforesaid Superior Court judgment and
Appellate Court decision finally deciding all remaining issues
in favor of this District and said Regional Board, its original
reasons for conducting said proceedings under said Resolution of
Intention No. 1676, as set forth on Page 2 hereof, are not necessarily
applicable at this time, inasmuch as there may now be a viable
alternative method for said area to comply with said Water Code
sections;
WHEREAS, reference is hereby made to the records of this
District, said Superior and Appellate Courts and said Regional
Board for details and particulars with respect to matters herein -
above referred to;
7
1
WHEREAS, the "patience of Job" has been tried and it appears
to this Board that it should take no further actions to implement
its proposed plan for sewering said area; nevertheless, the
phrases of Justice Evans in his concurring opinion in the aforesaid
Appellate Court decision continue to echo in the recesses of our
minds - "an attempt to circumvent by devious means a valid, existing,
final, prior judgment...obviously frivolous...." - and the irony of
Bernard Etcheverry's declaration that "STPUD has not attempted to
provide a sewer system to handle the waste from plaintiffs' properties
in the Fallen Leaf area" is not easily forgotten (see Page 7 of said
Appellate Court decision); also, although we do not disagree with the
State's belief that the purpose of the aforesaid appeal was "simply
to protract this litigation as long as possible so that [plaintiffs]
kir will not have to comply with Section 13951," we do not believe that
the prophesy of Mr. Norman, pointed out by the State in support of
that belief, will come to pass - "Where do we go when we're all through?
By that time, they'll have completely changed their environmental
policy...they'll start sanctioning basin disposal..." (see footnote
on Page 16 of said decision); therefore, although like Alice we now
wish to find the exit from Wonderland, at this time this Board will
not abandon its proceedings to sewer the Fallen Leaf Lake area;
WHEREAS, this Board is aware of the fact that property owner
resistance to construction of the sewer system proposed to be con-
structed by this District has been based in part on concern for the
high costs therof, and is equally aware of the fact that the annual
escalation of construction costs during the period the project has
fir'
been delayed has probably exceeded any difference in cost between the
two proposed systems; and this Board is also cognizant of the
inequity that would result for its taxpayers and patrons in the absence
of recovery of costs incurred by this District in connection with this
project, which costs to date exceed the sum of $200,000, as contrasted
with the taxes collected from the Fallen Leaf Lake area in the approx-
imate amount of $70,000;
8
NOW, THEREFORE, it is hereby DETERMINED and ORDERED as
follows:
1. That said sewer system proposed by CSO is untried and
unproven; that there is no reasonable degree of assurance that
said system can be operated and maintained without failures which
could result in liabilities, including fines as a discharger,
being incurred by the operator of said system; that it is highly
probable that there would be insurmountable problems in control-
ling installation and maintenance of the proposed private water
conservation devices, dates for fall shutdown and summer startup,
winter use of the sewer facilities, malicious or accidental damage
to pipes installed above ground and blockage of small diameter
pipes from grease and solid carryovers; that operation and mainte-
nance of said system would require performance of functions alien
to the operation and maintenance of sewage collection systems
now a part of this District's sewerage system; that approval of
said system by the U.S. Forest Service and said Regional Board
(and said legislature insofar as said special legislation may
constitute implied approval of said system) is not as persuasive
to this Board as the failure of this District's Engineer to recom-
mend said system (said Engineer having been relied upon by this
Board in developing the District's present sewerage system) inas-
much as none of said public bodies have any direct, legal responsi-
bility to this District nor will they be legally responsible for
any failures which occur in connection with operation and mainte-
ifte
nance of said system; and, in the opinion of this Board, it would
not be fair, just or equitable for this District to construct and/
or operate and maintain for an extremely small portion of its
taxpayers and patrons a sewer collection system of a different
kind and type than those heretofore constructed (including those
constructed pursuant to 28 other assessment district proceedings
conducted by this Board) and now operated and maintained by this
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District for all of its other taxpayers and patrons.
2. That, for the reasons set forth in the preceding
paragraph,, it is the opinion of this Board that if said CSO pro-
posed system is to be constructed, it should be owned, operated
and maintained by a public entity consisting solely of taxpayers
and patrons within the Fallen Leaf Lake area; and, for said reasons,
this Board should not and will not take responsibility for mainte-
nance and /or operation of said CSO proposed system.
3. That this Board, on behalf of this District, is willing
to accept into its presently existing sewerage system effluent
delivered to said system by any sewage collection system to serve
said Fallen Leaf Lake area which is to be operated and maintained
by another public entity duly formed to operate and maintain said
collection system, provided that said other public entity enters
into an agreement with this District, and fully and faithfully
performs its duties and obligations thereunder, which agreement
provides, in addition to other appropriate and reasonable provi-
sions, the following:
(a) that the effluent delivered to this District's
system shall be delivered thereto at such point or points as are
acceptable to this District and shall meet this District's standards
therefor at said point or points;
(b) for payment by said other public entity to this
District of reaonsable charges for transportation, treatment and
disposal of said effluent;
(c) for reimbursement of this District for all costs
incurred by it in connection with this project, i.e., the sewering
of the Fallen Leaf Lake area, including all things done by this
District and /or its representatives with respect to efforts to
accomplish such sewering by either and /or both its proposed sys-
tem and the CSO proposed system, subject to adjustment based on
taxes collected from said area; and
10
(d) for final approval by said Regional Board of
(1) said CSO proposed system as completed, and (2) operation and
maintenance thereof by said other public entity.
4. That this Board will hold in abeyance any further pro-
ceedings under and pursuant to said Resolution of Intention No.
1676 for the purpose of constructing and financing its proposed
sewer system for the Fallen Leaf Lake area until such time as
any one or more of the following occurs, to wit:
(a) said Association advises this Board in writing
that it has abandoned its attempt to provide the CSO proposed
sewer system for the Fallen Leaf Lake area and desires this Board
to proceed with construction and financing of its proposed sewer
t hy system for said area;
(b) receipt by this Board from the Executive Officer
of said Regional Board, in writing, of notice of failure of said
Association to net the time schedule or any amendments thereof
established by said Regional Board for implementation of the CSO
plan for sewering said area (which time schedule is set forth in
paragraph "5" of Resolution No. 76 -14 of said Regional Board,
attached hereto as Exhibit H) and the request of said Regional
Board that this District proceed with implementation of its pro-
posed sewer system for said area; and
(c) receipt by this Board of written advice that the
Attorney General has, prior to commencement of "Task" 4 (Construction)
in the aforesaid time schedule, enforced the injunction hereinbefore
voie referred to by appropriate action in the Superior Court against
any property owners or users of property within the Fallen Leaf
Lake area, coupled with written request from at least 10 property
owners or users of property within said area that this Board proceed
with implementation of its proposed sewer system for said area, and
confirmation of the validity of said advice and said requests by
representatives of this District.
11
5. That this Board will abandon said proceedings if and
when (a) it has received written notification from the Executive
Officer of said Regional Board that said Association has imple-
mented the CSO plan for sewering the Fallen Leaf Lake area, in-
cluding completion of construction, to the satisfaction of said
Regional Board and that said Regional Board approves of operation
and maintenance of said completed CSO system by the public entity
formed for such implementation, and (b) an agreement for acceptance
of the effluent from said CSO system into this District's sewerage
system has been executed by said public entity and this Board on
behalf of this District, or the aforesaid notification includes
approval of a method of treatment and /or export of said effluent
other than by delivery thereof to this District's sewerage system.
6. That the Clerk of this District having been appointed
as the person to whom payments of assessments shall be made,
shall forthwith refund to the persons who made the payments on
the assessments as set forth in Exhibit A hereto the amounts so
paid by them, respectively, together with their respective pro-
portionate shares of the interest earned thereon; and that in
transmitting said refunds said Clerk shall advise said persons
that the refunds are being made (a) without prejudice to further
proceedings by this Board under said Resolution of Intention
No. 1676 and (b) subject to payment of said assessments in the
event said proceedings are not abandoned, and shall enclose with
each of said refunds a copy of this resolution.
Aire 7. That said Clerk forward copies of this resolution to
said Regional Board, said Attorney General, said Association and
said attorney for said Association, and cause a copy of this
resolution (without the exhibits attached thereto) to be recorded
in the office of the El Dorado County Recorder with a request that
same be indexed, in the same manner provided in Section 3117 of
the Streets and Highways Code, in the book containing the index
of the maps of assessment districts, attaching thereto a certificate
similar to that prescribed by said Section 3117.
* * * * * * *
19
/s/
Edward Hegarty, President of the Board
SOUTH TAHOE PUBLIC UTILITY DISTRICT
ATTEST:
/s/ li::;r _d :ilah
David W. Callahan, Clerk and Ex- officio
Secretary of the Board
SOUTH TAHOE PUBLIC UTILITY DISTRICT
* * * * * * * * * * * * * * * * * * * * **
I hereby certify that the foregoing is a full, true and correct copy
of Resolution No. 2054, duly and regularly adopted by the Board of
Directors of the SOUTH TAHOE PUBLIC UTILITY DISTRICT, El Dorado
County, California, at a meeting thereof duly held on the 16th day of
December, 1976, for the following vote:
AYES, Directors: Hegarty, Fes ler, Kashuba, Fieldcamp and Cocking
NOES, Directors: None
ABSENT, Directors: None
David W. Callahan, Clerk and Ex- officio
Secretary of the Board
""w SOUTH TAHOE PUBLIC UTILITY DISTRICT
13
• . INDEX
5
to
; -
EXHIBITS
•
A Payments Made on assessments
Remarks of representatives of Regional Board at South
Tahoe Public Utility District public hearing on July 23, 1973
C Summary report on grant application
D Judgment, Findings of Fact and Conclusions of Law - Superior
Court
•
• ,
E Appellate Court decision
F District Engineer report to Board, dated October 6, 1976
• G Association attorney's comments, dated October 11, 1976
Regional Board's Resolution No. 76-14, adopted on October 20,
1976
• s
'
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SOUTH TAHOE PUBLIC UTILITY DISTRICT
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SOUTH TAHOE PUBLIC UTILITY DISTRICT 5
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ASSESSMENT DISTRICT 1971 -1
ASSESSMENTS PAID
ASSESSMENT NO, AMOUNT BALANCE
$ $
157 4,805.81 0
158 500.00 3,989.54
162 312.00 4,377.48
159 500.00 4,357.96
108 8,293.03 0
53 5,581.32
198 9,187.28 0
18i 9,051.51 0
164 200.00 5,264.42
77 7,910.19 0
115 5,851.51 0
139 4,866.66 0
$57,059.31
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U SQLUTIQN NO. 2054
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SOUTH TAHOE PUBLIC UTILITY 'DISTRICT .
� i
15.
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MR. Du BOIS: (Senior Engineer of Lahontan
11 Regional Water Quality Control Board)
12 ••••
13 In discussing this problem, or trying to resolve
14 the situation, the Regional Board has considered variances,
15 which the Porter - Cologne Act, adopted by the State
1 6 Legislature, allowed them to do. And, in so doing, the
17 main consideration has been that the two criteria required
18 by the law in order for the Regional Board to grant a
19 variance are that they could find there would be no effect
20 on Lake Tahoe by the continued disposal of these waste
21 waters, and that the sewering of an area would be damaging
22 to the environment.
23 It has been the Board's decision, on two occasions,
24 when confronted with the situation at Fallen Leaf Lake,
2► that a variance would not be granted, and their finding
26 has been that no variance should be granted to the Fallen
ASSOCIATED COURT REPORTERS
OFFICIAL COURT REPORTERS
COURTHOUSE RENO, NEVADA
PHONE 785 -4262 785 -4270
16.
1 Leaf Lake area, because these conditions could not be
2 met.'
3 An important point which I think everyone
4 should understand is that not receiving a variance from the
5 Regional Board means that waste waters must be exported
6 from the area to comply with the California State Law.
7 This expressly means that it includes all waste waters.
8 That is not just toilet waters, but i4 weans any waste
9 that originates from a dwelling, which includes sink waste
10 waters, bathtubs, showers, washing machines and any other
11 source of waste water, so that an alternative to sewering
12 a project, which includes the use of holding tanks and .
13 transporting to an export facility, does not mean that you
14 must just transport toilet wastes, but it means all waste
time •
15 waters. And this becomes a very much more difficult
16 problem.
17 The reason the Regional Board has not come up
18 to this time, taken an express enforcement action against .
19 anyone for not meeting the export deadline, which was .
20 January 1st, 1972, in the Fallen Leaf Lake area, has been
21 that the Board has been aware that a project has been in
222 the mill, and has been contemplated for sewering of this
23 area, and that export of sewage waste waters from the'
24 Fallen Leaf Lake area was proceeding, and the Regional
{ 25 Board has taken the time to allow the persons involved to
2G appeal to the Regional Board for variance, to hear the
ASSOCIATED COURT REPORTERS
OFFICIAL COURT REPORTERS
COURTHOUSE RENO, NEVADA
PHONE 785 -4282 785 -4270
•
17.
1 case and make a decision whether the variance should be
2 granted, and to allow the Public Utility District and the
3 residents to resolve the
problems involved so this
4 proceeding could proceed.
5 But I .would recommend, as the Senior Staff
6 Member of the Regional Board, that, if this project does
7 not go forward forthwith, that the Regional Board should
8 consider immediate enforcement Action against the residents
g in the Fallen Leaf Lake area who are not complying with the
10 law and have not been for about a year - and -a -half now, and
11 should do so within the next few months, if the project
12 has not proceeded and construction begun immediately.
13 So, in conclusion, I would just say that we
14 have an attorney from the State Water Resources Control
15 Board here tonight. He would discuss the enforcement
16 alternatives that the Regional Board and the State Board
17 would have if the project does not proceed, and that, as
1 8' a staff member for the Regional Board, I would recommend to
19 the Regional Board that they do initiate these enforcement
20 proceedings if the project doesn't proceed.
21
23
24 V
{ 25
2G
ASSOCIATED COURT REPORTERS
OFFICIAL. COURT REPORTERS
COURTHOUSE RENO, NEVADA
PHONE 785 -4262 783 -4270
22.
Ikow 1
2
( 3
4
5
6
7 Next to speak on behalf of the State's position
8 is Attorney Robert Boehm.
9
10 The Regional Board has not yet commenced against
1 individuals so occupying homes within the Fallen Leaf Lake
12 area, by virtue of the fact that this district had in. the
13 works a project to sewer the area. If, however, as further
1111001,
14 stated by Mr. Du Bois, this project does not move forward,
15 the Regional Board will have to look to its judicial
16 remedies. As of the present time, and by virtue of Section
17 13951 of the Porter - Cologne Act, those remedies include the
18 enjoining of any person from occupying premises which
19 discharge other than to a sewer system or to a holding
20 tank.
21 The Regional Board, commencing such an action,
has three --or really two avenues available to its first,
2'3 it can request the local District Attorney to commence
24 an action, and if the local District Attorney does not
{ 25 commence an action, then it can request the Attorney General
26 to commence an action on behalf of the people of the State
ASSOCIATED COURT REPORTERS
OFFICIAL COURT REPORTERS
COURTHOUSE RENO, NEVADA
PHONE 785 -4262 785 -4270
•
23.
1 of California.
2 I might also add that any other person who
3 can establish the requisite standing could entertain
4 an action against individuals occupying such residences in
5 the Fallen Leaf Lake area. I concur in Mr. Du Bois'
6 recommendation, which he intends to make before the
7 Regional Board, to request the District Attorney, or, as
8 appropriate, the Attorney General, to request an action
9 against such persons occupying residences not connected
10 to a sewer system or to a holding tank, in the event this
11 Board does not proceed with the project of Bewaring the
12 area in all due course.
13 I might also add that there are provisions
%rw 24 under Section 951 for variances granted by the Regional
15 Board from the provisions of Section 13951 of the Porter -
16 Cologne Act. However, the Regional Board has considered
17 variances generally for the Fallen Leaf Lake area once,
18 and specifically for the Fallen Leaf area last October.
19 And in both cases, it has rejected the requested variance.
20 It would also be my recommendation that if
21 another request for a variance from the provisions of
22 Section 13951 were made in the future, that the Regional
23 Board decline to consider such a request for a variance
24 unless those persons requesting the variance can establish
{ 25 that they can produce evidence not reasonably available at
2c the time the other requests for variances were made.
ASSOCIATED COURT REPORTERS
OFFICIAL COURT REPORTERS
COURTHOUSE RENO, NEVADA
PHONE 785 -4262 785 -4270
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- SOUTH TAHOE PUBLIC UTILITY DISTRICT
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FALLEN LEAF LAKE SEWER PROJECT
STATUS OF DISTRICT'S APPLICATION FOR STATE - FEDERAL GRANT
10 -26 -72 In response to telephone inquiry by District, received letter from
Lahontan Regional Water Quality Control Board to the effect that new Federal law
provides funds for the first time for sewer collection systems under certain circumstances.
10 -27 -72 District responded to letter of previous day from Lahontan submitting
data on the Fallen Leaf Lake Project.
11 -2 -72 Received letter from State Water Resources Control Board acknowledging
inquiry by District regarding grant for Fallen Leaf Lake sewer system and pointing out
uncertainty of the availability of funds for collection systems.
11 -14 -72 District submitted application for State - Federal Grant for the Fallen
Leaf Lake Project to the State Water Resources Control Board.
•
1 -19 -73 Notice from State Water Resources Control Board that the District's
application for a State - Federal grant for Fallen Leaf Lake was under review.
5 -21 -73 Received from State Water Resources Control Board the 1973 -74
k ilo Projects Needs List. Fallen Leaf Lake was included for grant consideration.
6 -19 -73 Received from State Water Resources Control Board their Proposed
fiscal year 1973 -74 Clean Water Grant Priority List. The Fallen Leaf Lake Project
was not included and will receive no such grant this year. The list shows Priority
classes A through j, and notes that Classes A through E will be considered for grant
funds in 1973 -74. Fallen Leaf Lake was not assigned any priority.
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-• RESOLUTION NO. 2054
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� SOUTH TAHOE PUB �XO VILI`F`Y DIS'T'RICT -
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engineers
planners ,4'C ri
ihr economists
scientists
6 October 1976
R- 3672.48
Board of Directors
South Tahoe Public Utility District
P.O. Box AU
South Lake Tahoe, California 95705
Gentlemen:
CSO, engineers for Fallen Leaf, has sent us the material
that I requested at the 11 August meeting of representatives
of them, the District, and the Forest Service. It consists
of:
1. A report containing a description of the system
and calculations of flow.
2. Preliminary plans (based on topographic maps
furnished by us) of the basic layout of the system.
A brief description of the plan is as follows:
1. Bifurcation (separation) of wastes is not proposed.
All wastes will be delivered to several subcentral
systems which will transport the wastes to central
systems and finally to the existing District
system near the north end of Fallen Leaf Lake.
2. Water conservation methods will be undertaken- -
low- volume toilets (1 quart per flush), low -flow
shower heads, and flow - restricted faucets. Garbage
grinders will not be permitted.
3. Average design flows range from 14 gallons per
capita day at Stanford Camp to 24 gallons per
capita day at the summer homes. Peak flow rate is
approximately seven times average flow.
4. Wastes will be delivered by gravity or pumping to
a subcentral pumping site. Here they will enter a
septic tank for settling of solids and flotation
Rechtmy Otiicc p 112s Cuutt Street Redding, CJItitrntd 96(01 916/241 5811
South Tahoe Public Utility District
Page 2
6 October 1976
R- 3672.48
of grease. An overflow emergency storage compart-
ment will be provided. Effluent from the septic
tank will be pumped to a central pumping station.
5. Central pumping stations will receive the above
described wastes, plus some local wastes, and will
then transport these to the final export station
which will pump to the existing system.
6. A total of 14 pumping stations will be provided.
Aeration, for hydrogen sulfide control, will be
provided at some of the stations. Permanent emer-
gency power generation will be provided at the
final export station. 'The other stations will
need portable generators in the event of power
outage. Pump motor size will vary from 1/4 to
5 horsepower. Pump capacities will generally be
larger than that indicated by design flows so as
to maintain pipe flow velocities of not less than
2 feet per second.
7. Piping will be 2 -4 inches in size. Some flow will
be by gravity, but most will be by pressure. Most
pipes will be laid underground with 2 feet of
cover, but some will be above ground. The above -
• ground pipes will be insulated and encased.
8. During the winter season the system will be deacti-
vated and will be drained.
If the District intends to construct, operate, and maintain
the proposed system, at least the following points should be
considered:
1. Normal design flow rate for a system such as this
at South Tahoe is 90 gallons per capita day with a
peaking factor of 4. Are the design flow rates
(14 -24 gallons per capita day with a peaking
factor of 7) adequate? With water conservation
devices, as proposed, properly installed and
maintained, the flow rates may well be sufficient.
However, the District has no control over such
devices on private property.
•
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South Tahoe Public Utility District
Page 3
6 October 1976
R- 3672.48
2. It is reported that a few people live at Fallen
Leaf year -round now. With the current yen for
winter sports, more people may visit there in
future winters. With the system shut down in
winter, as proposed, how will the wastes from
these people be handled?
Neither 2 feet of cover nor insulation will protect
the pipes from freezing if there is liquid in them
but no flow. How can these lines be totally
drained, and what prevents some person from causing
a discharge and recharging portions of the lines?
• Also, how will the decision for dates of fall
shutdown and summer startup be made?
3. Some of the pipe will be laid above ground. Will
there be adequate protection from malicious or
accidental damage?
4. Normal septic tank effluent is relatively free of
grease and solids and can be handled by the same
sort of pumps and pipelines as those used in water
systems. However, grease and solids carryovers
can occur which may block a small diameter pipe-
line.
5. A decision will have to be made as to what points
in the system the local property owners' responsi-
bility for operation and maintenance will end and
District responsibility will begin. For example,
one pumping station will serve only three cabins
and another will serve only five. Will these
small installations be a District responsibility?
6. Because of the large number of pumping stations
(even though small in size) compared to the popu-
lation of the area, and the need for periodic
pumping out of the pumping station septic tanks,
maintenance costs may be higher than in other
areas of the District. How will these costs be
handled?
7. It appears that some of the pipelines will be laid
in locations that are not now accessible to vehicles.
•
South Tahoe Public Utility District
Page 4
r 6 October 1976
R- 3672.48
If maintenance in these area is required, how will
access be obtained? What sort of easements will
be granted?
If the people at Fallen Leaf wish to accept the restriction
of summer use only, the proposed system appears to be a reason-
able approach. Although several technical questions have been
raised, we believe satisfactory solutions can be developed.
I am sure that the Board of Directors and your attorney will
have questions in addition to those that I have posed above.
I suggest that we meet to discuss these and then offer to
meet with the Fallen Leaf people to discuss the total project
as currently proposed.
Sincerely,
John A. Jensen
Chief Engineer
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MEMORANDUM .. -,r:t �� ��
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ISSUING OFFICE: TO: Y -'
c H 2v 1 � ❑ 515 W. NORTHERN LIGHTS BLVD., ANCHORAGE, AK 99503 I
HILL ❑ 3200 GLACIER HIGHWAY, JUNEAU, AK 99802 1
Eg ❑ 1100 QUAIL ST., SUITE 208, NEWPORT BEACH, CA 92660 FROM:
❑ 1525 COURT ST., REDDING. CA 96001
❑ 555 CAPITOL MALL, SUITE 1455, SACRAMENTO, CA 95814
❑ 360 PINE ST.. SAN FRANCISCO, CA 94104 DATE
❑ 12000 E. 47TH AVENUE, DENVER, CO 80239 • .
❑ 414 NORTH FIRST ST., BOISE, ID 83701 RE: .
❑ 1600 S.W. WESTERN BLVD., CORVALLIS, OR 97330 I. 1
❑ 200 S.W. MARKET ST., 12TH FLOOR, PORTLAND, OR 97201 k
RECORD
❑ 1930 ISAAC NEWTON SQ. E., ROOM 201, RESTON, VA 22090
❑ 1500 - 114TH AVENUE S.E., BELLEVUE, WA 98004 1
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SOUSS T AHO PUBLIC UTILITY DISTRICT
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October 11, 1976
Board of Directors
South Tahoe Public Utility District
P. 0. Box AU
South Lake Tahoe, CA 95705
Re: Letter Report of CII2M
dated 6 October 1976
Gentlemen:
I have consulted with CSO with respect to the
questions posed in the letter report of Cfi2M of October 6,
1976 and enclose our comments. References are to the
enumerated items found on pages 2, 3 and 4 of this letter.
1. It is first pointed out that the limiting
factor will not be tha size of pipe but the capacit?y of the
p._*nps. Therefore, in the event additional capacity is needed
ONO a larger pump will be the answer, not the replacing of buried
line.
Secondly, the system is self limiting. If persons
remove their water reducing fixtures and they exceed the
system's capacity, the excessive volume will be their problem
at their residence. This in itself is a strong control over
the unlikely evert of horse owners deliberately attempting to
defeat the system. They will have no other recourse than to
put the devises back in.
2. The system is a summer system. It will be shut
down in the winter because it cannot ba expected to function
in the winter. It will be shut down when the 1 -later system is
shut down. There will be no water to operate the system or
improperly charge the system assuming electricity were avail-
able at the pumping stations to deliver the waste to the
collector lines.
Those who would attempt to use their cabins will have
to use noldinl; tanks. Because of the inaccessability it is not
likely that any extensive increase in winter use can be anti -
c_puted .
..ow
South Tahoe Public Utility District
Pact two
October 11, 1976
We differ with Mr. Jensen's conclus that these
insulated pipes under two feet of cover will.be protected
from freezing however, the issue is moot. The lines will be
engineered in such a manner as will permit them to be drained,
and they will not be used during the cold periods of the winter.
3. There is no guarantee that someone with intent to
destroy will not attack the transmission line. However, in the
Fallen Leaf area this has not been a problem in the past. Having
in mind the incentive of the people to see the system function
without mishap it is highly unlikely malicious damage will be a
problem in the future. Finally, if damage to the line occurs
the problem is quickly ascertainable and the pipeline lends itself
to quick repair. This cannot be said of the conventional systems
where the insidious leaks and seapages occur without anyones
knowledge.
4. The system calla for sewage type pumps. The
system anticipates the use of airation which will disburse
solids and grease particles. Finally, the septic tanks will
have grease traps.
klimw 5. The maintenance costs of the system will be borne
by those who directly or indirectly benefit from the system.
6. We would anticipate the district's responsibility
will commence with thefirst pump adjacent to the home and extend
to the manhole in the Forest Service Campground. The small
insta11fit or!,:;.,!;t1 11_tie a district responsibility.
7. Maintenance of the pipelines is required, it will
be performed in the same manner and access to the areas will be
acquired in the same manner as when the line was initially in—
stalled. The easements which will be acquired will Ipe of the same
nature as would have been required had the Clair Hill line been
put in.
I hope the preceding proves helpful in your evaluation.
Very truly yours,
JAMES K. NORMAN
JKN: lk
cc: Lloyd Bracewell
law C:,O Interr.atiortal Inc.
CH2 4 Hill Engineers
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RESOLUTION NO. . 2054 5 4 3
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'�,N SOUTH.TAHOE PUBLIC UTILITY DISTRICT •
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CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD
IAHONTAN REGION
RESOLUTION 76-14
FALLEN LEAF LAKE AREA
El Dorado County
WHEREAS:
1. The Regional Board, after due public notice, conducted a public hearing on
October 28, 1976 at South Lake Tahoe, California, to consider the matter of
compliance of the Fallen Leaf Lake Area with Section 13951 of the California
Water Code, as amended.
2. Section 13951 of the Water Code prohibits the continued use of individual
waste disposal systems within the California portion of the Lake Tahoe Basin
after January 1, 1972, unless specifically exempted by the Regional Board.
Any person may enjoined from occupying any building not in compliance
with this Section.
3. There presently exists an injunction barring occupancy of buildings at Fallen
Leaf Lake that are not in compliance with Section 13951 of the Water Code.
4. The Fallen Leaf Protective Association proposes to have the now unsewered por-
ker' tion of the Fallen Leaf Lake Area comply through export of all sewage wastes to
the South Tahoe Public Utility District. Implementation would be through
a small diameter pressure export line and a combination vacuum and pressure
collection system.
5. The following time schedule will provide for implementation of the project
to comply with the law at the earliest possible date:
TASK DATE REPORT OF
COMPLIANCE DUE
Complete Formation of
Implementing Agency May 1, 1977 May 8, 1977
Complete Final
Construction Plans March 25, 1977 April 1, 1977
Complete Financial and
Institutional Arrangements September 15, 1977 September 22, 1977
Complete Construction July 15, 1978 July 22, 1978
Attain Full Compliance October 15, 1978 October 22, 1978
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FALLEN LEAF LAKE AREA -2- • Resolution 76-14
El Dorado County
THEREFORE BE IT RESOLVED that:
1. In the event any portion of the time schedule listed in No. 5 above is not
met by the Fallen Leaf Lake Area, the Executive Officer is directed to request
the Attorney General to vigorously enforce the injunction imposed on the area
against any person not complying with the law and the injunction.
I, Roy C. Hampson, Executive Officer, do hereby certify that the foregoing is
a full, true, and correct copy of a Resolution adopted by the California Regional
Water Quality Control Board, Lahontan Region, on October 28, 1976.
ROY HA ON
E TIVE OFFICER
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I hereby certify that the foregoing is a full, true 4nd . •
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'-•correct copy of Resolution No. 2054 duly and regularly adopted
by.the Board of Directors of the South Tahoe Public Utility pis-
•'1
trict, El Dorado County, California, at a meeting thereof duly held-'
on the 16th day of DeceMber, 1976, by the following vote:
. • - .,.4,;
AYES, and in favor thereof, Directors.:
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ABSENT, Directors:
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Clerk and ex-officio Secretary
South Tahoe Public Utility Distriot •••_
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kW . 1 JOHN C. WEIDMAN, ESQ.
WILSON, JONES, MORTON & LYNCH 1 { - ID
2 I 630 North San Mateo Drive
San Mateo CA 94401 3 H} y'6 j9713
3 Telephone: (415) 342 -3523
1 CARL A. ':� '�'LLY, ' _
4 "�
Attorneys for Defendant isy �.
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF EL DORADO
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> < 11 FALLEN LEAF PROTECTION ASSOCIATION )
Jul -�
z 0oc^ an unincorporated nonprofit association, ) •
0-1w a : 12 I individually and on behalf of all )
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o < t—I assessees designating said association )
* .8z6 ,7 - 13 ' as their spokesman in the assessment ) NO. 22677
cu "aQ proceedings subject of this action; )
14 STANFORD ALUMNI ASSOCIATION, a nonprofit )
iwz corporation; WILLIAM P. CRAVEN, doing )
., 15 business as FALLEN LEAF LODGE; HARRIET F. )
;L: ' CRAVEN; FRANCIS I. P. STREET; all plain- )
Q 16 tiffs individually and on behalf of all ) JUDGMENT
others similarly situated, )
17 )
Plaintiffs, )
18 )
vs. )
19 )
SOUTH TAHOE PUBLIC UTILITY DISTRICT, )
o D20 a municipal utility district of the )
o► 40 1 State of California, )
o ° - ,21 1 )
O 1 Defendant. )
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t d X24 The above - entitled action came on for trial before the Court
-Jo a C2 on or about September 5, 1973, plaintiffs being represented by
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c_1)< 2 26 NORMAN & EAMES and JAMES K. NORMAN and defendant SOUTH TAHOE PUBLIC .
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1 UTILITY DISTRICT being represented by WILSON, JONES, MORTON & LYNCH
2 and JEREMIAH J. LYNCH, and the record of the proceedings leading up
3 to the formation of Assessment District 1971 -1 and environmental
4 proceedings conducted pursuant to Public Resources Code § 21000,
5 et seq. having been :introduced in evidence, and further documentary
6 evidence having been presented to the Court and the matter having
7 been submitted on written memoranda, and the Court having entered
8 a certain Interlocutory Order dated September 11, 1975, and the
9 assessment proceedings having been remanded to defendant Board of
a 10 Directors for further proceedings and decision by said Board, and
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11 after further proceedings and decision by the Board upon remand,
420=0,
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f °O 121 and the Court having retained jurisdiction pending completion of
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oNWO 13 hearing and decision upon remand, and the matter having been re-
v 14 submitted to the Court for decision on March 8, 1976 upon further
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� o,, 15 written memoranda, and the Court having filed its written memoran-
ti
¢ 16 dum of decision and likewise having filed herein its findings of
17 fact and conclusions of law and having directed that judgment be
18 made herein and the relief prayed for by plaintiffs in their Peti-
19 tion for Writ of Mandate by denied,
20 NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED and DECREED
21 that plaintiffs take nothing by their Petition for Writ of Mandate
22 and that defendant SOUTH TAHOE PUBLIC UTILITY DISTRICT have
23 judgment against plaintiffs as follows:
24 1. The proceedings conducted by defendant SOUTH TAHOE PUBLIC
25 UTILITY DISTRICT in the formation of Assessment District 1971 -1
26 are valid and lawful and were properly conducted pursuant to the
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1 2
1 provisions of the Municipal Improvement Act of 1913 and bonds to
2 he Issued upon the unpaid assessments pursuant to the Improvement
3 Bond Act of 1915;
4 2. That the special assessments levied as to the parcels of
5 real property owned by plaintiffs are valid and lawful and are in
6 proportion to the special benefits received;
7 3. The environmental proceedings conducted by defendant
8 SOUTH TAHOE PUBLIC UJTILITY DISTRICT pursuant to Public Resources
9 Code § 21000, et seq. are valid and lawful;
10 4. That the Final Environmental Impact Report is in all
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> ? 11 respects adequate as regards procedure and content and substantiall,
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F W F 12 complies with all state and local guidelines; and
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2 .8z.4 3 13 5. Defendant SOUTH TAHOE PUBLIC UTILITY DISTRICT shall have
▪ 9
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14 judgment against plaintiffs for costs of suit herein in the sum
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15 of $
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16 i
17 Dated: � 3 1g7
18
19
WILLIAM E. BYRE
WILLIAM E. BYRNE
20 Judge of the Superior Court
21
22
23
24
25
26
thipo
3
• ENDORSED
1 JOHN C. WEIDMAN, ESQ. I L �y. � WILSON, JONES, MORTON & LYNCH F � 2 630 North San Mateo Drive L 1
San Mateo CA 94401 i� /u
3 Telephone: (415) 342- -3523
4 Attorneys for Defendant sy UO ORES BRED' -0
Dip -s:7,
5
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF EL DORADO
10
x
> 11 FALLEN LEAF PROTECTION ASSOCIATION, )
d
g an unincorporated nonprofit association, )
l' in; 12 individually and on behalf of all )
O J $- LL
W F - - n
re <. assessees designating said association ) •
f ; :
13 as their spokesman in the assessment ) NO. 22677
• t r g proceedings subject of this action; )
14 STANFORD ALUMNI ASSOCIATION, a nonprofit )
ZW 4, corporation; WILLIAM P. CRAVEN, doing )
"ZO 15 business as FALLEN LEAF LODGE; HARRIET F.)
J 0 0
; � CRAVEN; FRANCIS I. P. STREET; all plain- ) SETTLED
16 tiffs individually and on behalf of all ) FINDINGS OF FACT AND
others similarly situated, ) CONCLUSIONS OF LAW
17 )
Plaintiffs, )
18 vs. ) )
19 )
SOUTH TAHOE PUBLIC UTILITY DISTRICT, )
20 a municipal utility district of the )
State of California, )
21 )
Defendant. )
22 )
23 FINDINGS OF FACT
ASSESSMENT PROCEEDINGS
24
I
25
thaw 26 At all times herein mentioned defendant, SOUTH TAHOE PUBLIC
kir 1 UTILITY DISTRICT, was and is a Public Utility District organized
2' and existing under and by virtue of the laws of the State of
3 California.
4 II
5 Plaintiff, FALLEN LEAF PROTECTION ASSOCIATION, is an unin-
6 corporated association whose members consist of the owners of
7 private parcels of property surrounding Fallen Leaf Lake.
8 III
9 Plaintiff, STANFORD ALUM4NI ASSOCIATION, is an incorporated
a 10 association. Plaintiffs, WILLIAM P. CRAVEN, HARRIET F. CRAVEN and
s_,
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,a >,a 11 FRANCIS I. P. STREET, all own real property within the boundaries •
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O J W u v 12 of Assessment District 1971 -1; and said real property is being
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" � * a 14 IV
,
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15 The above -named plaintiffs instituted the within action on
16 their own behalf and on behalf of all persons similarly situated.
17 The class which plaintiffs represent is composed of all private
18 property owners in SOUTH TAHOE PUBLIC UTILITY DISTRICT'S Assessment
19 District 1971 -1.
20 V
21 On or about April 6, 1972, the Board of Directors of SOUTH
22 TAHOE PUBLIC UTILITY DISTRICT adopted Resolution No. 1676 entitled
23 "A Resolution of Intention to Acquire and Construct Improvements,"
24 which resolution stated that the public interest and convenience
25 required and that it was the intention of the Board to order the
26 following acquisitions and improvements, to wit:
2
1 The installation and construction of sanitary
sewer systems, including trunk sewers, collec-
2 tion sewers, necessary pumping stations and
force mains, manholes, flushing devices, rod -
3 holes, wye branches, laterals and appurtenances
on streets and roads and in easements to be
4 acquired therefor, to serve each of the sepa-
rate parcels of land within the boundaries of
5 the proposed assessment district... .
6 VI
7 On June 21, 1973, the Board of Directors of SOUTH TAHOE
8 PUBLIC UTILITY DISTRICT adopted Resolution No. 1816 entitled "A
9 Resolution of Preliminary Approval of Engineer's Report" wherein
a 10 said Board preliminarily approved and confirmed the Engineer's
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>a> 11 Report, which included, among other things, the engineer's estimate
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• ooZO � 13 acquisitions and improvements, and likewise preliminarily approved
C'u! 2 `
'i *° 14 the diagrams showing the said assessment district, the boundaries
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Joy 15 and dimensions of the respective subdivisions of land within said
3 f 2
16 assessment district, and further preliminarily approved the pro -
17 posed assessments upon the several subdivisions of land in said
18 assessment district, including the assessment proposed to be
19 levied against the parcels of land owned by plaintiffs, and each
20 of them, in proportion to the estimated special benefits to be
21 received by each of such subdivisions of land respectively from
22 said acquisitions and improvements.
23 VII
24 On June 21, 1973, said Board of Directors of SOUTH TAHOE
25 PUBLIC UTILITY DISTRICT adopted Resolution No. 1817 entitled "A
26 Resolution Appointing Time and Place of Hearing Protests in
3
ihor 1 Relation to Proposed Acquisitions and Improvements, and Directing
2 Notice," in which the 23rd day of July 1973, at the hour of 8
3 o'clock P.2•I., District Office, treatment plant, Johnson Road near
4 junction with Black Bart Street, Tahoe Valley, California (P. 0.
5 Box AU, South Lake Tahoe, California 95705) was fixed as the time
6 and place when and where said Board would consider and finally
7 determine whether the public interest, convenience and necessity
8 required the acquisitions and improvements aforesaid, and when and
9 where it would consider and finally act upon the Engineer's Report
a 10 as preliminarily approved.
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4 0 K z r
Z°O"' 12 All notices required by the Municipal Improvement Act of 1913
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fo 13 were duly posted, published and mailed as required by and in
14 accordance with the law, and affidavits of publishing, posting
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- 15 and mailing were duly filed and made part of the record of the
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16 proceedings in accordance with the law.
17 IX
18 At or before the time set for public hearing, written protests
19 were filed by some of the individually named plaintiffs and members
20 of the purported class represented by plaintiffs.
21 X
22 A public hearing was duly held by the Board of Directors of
23 SOUTH TAHOE PUBLIC UTILITY DISTRICT on the 23rd of July 1973, at
24 the time and place aforesaid, and evidence, both oral and docu-
25 mentary, was introduced at said hearing and all persons desiring
26 to protest or present evidence against or in favor of the proposed
4
1 acquisitions and improvements or against their respective assess-
2 ments, including plaintiffs and each of them, were given an
3 opportunity to be heard and to present evidence in support of
4 their protests. However, the District unduly restricted the
5 right to cross - examine MR. NOBLE MURRAY and the right of rebuttal
6 of MR. JAMES BRETT and as to MR. MURRAY and MR. BRETT, the matter
7 was remanded for further hearing and decision.
8 XI
9 The written protests aforesaid filed by some of the individ-
10 ually named plaintiffs and members of the class represented by
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> <?< 11 plaintiffs comprised over one -half of the area of the lands within
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* oz„;:: 13 protest. At the conclusion of the public hearing aforesaid, the
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VD
o� 15 said majority protest by a unanimous vote of its members (Resolu-
2
16 tion No. 1829).
17 XII
18 On July 23, 1973, the Board of Directors also adopted
19 Resolution No. 1830 entitled "A Resolution and Order Adopting
20 Engineer's Report, Confirming the Assessment and Ordering the Work
21 and Acquisitions," which resolution determined, among other things,
22 that the assessment of the total amount of the costs and expenses
23 of the proposed acquisitions and improvements upon the several sub -
24 divisions of land in said District in proportion to the estimated
25 benefits to be received by said subdivisions, respectively from
26 said acquisitions and improvements, and of the expenses incidental
thee
5
1 thereto, contained in said report, be, and the same is hereby
2 finally approved and confirmed as the assessment to pay the costs
3 and expenses of said acquisitions and improvements.
4 XIII
5 On August 14, 1973, plaintiffs filed a Petition for Writ of
6 Mandate challenging certain aspects of environmental proceedings
7 and Assessment District 1971 -1 proceedings conducted by the
8 District.
9 XIV
10 On September 5, 1973, the record of the aforesaid proceedings
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> 11 was introduced into evidence, and the matter was to be submitted
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a 13 XV
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°yd 14 On February 20, 1975, the matter was stayed pursuant to CCP
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mod 15 5 916 pending the outcome of an appeal.
16 XV I
17 On September 12, 1975, an Interlocutory Order was signed and
18 filed by the Court remanding the assessment proceedings back to
19 the Board of Directors of SOUTH TAHOE PUBLIC UTILITY DISTRICT for
20 the limited purpose of allowing plaintiffs' attorney to cross -
21 examine MR. NOBLE MURRAY, a real estate appraiser called by
22 defendant District and also to allow the rebuttal evidence of
23 MR. JAMES BRETT, a property owner and real estate appraiser.
24 The Court retained and reserved jurisdiction to hear and decide
25 the matter after remand and further decision by the Board of
26 Directors of SOUTH TAHOE PUBLIC UTILITY DISTRICT.
6
kie 1 XVII
2 Pursuant to the aforesaid Interlocutory Order filed September
3 12, 1975, the Board of Directors, on September 18, 1975, adopted
4 Resolution No. 1968, which resolution determined, among other
5 things, that the protest hearing be reopened to allow the cross -
6 examination of MR. NOBLE MURRAY and rebuttal testimony of MR.
7 JAMES BRETT. Said resolution also set the time and place of
8 hearing for the District offices on the 13th of November 1975,
9 at the hour of 7 o'clock P.M. and directed Notice. Said resolu-
10 tion further stated:
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> > 11 That after such cross - examination of said
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Noble Murray and such rebuttal evidence of
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OZ at said reopened hearing, this Board will
13 reconsider and determine whether said Reso-
ig Z o lution No. 1830 should be amended or rescinded,
14 and whether changes and modifications should
•WZ< be made in said proceedings; and that it is the
N Z O N
mod 15 intention of this Board to make such changes and
;i modifications in said proceedings pursuant to
16 said Resolution of Intention No. 1676 as this
Board may determine to be required, if any, by
17 the public interest, convenience and necessity.
18 XVIII
19 Notice of the aforesaid meeting was duly posted, published
20 and mailed to all property owners assessed in the proceedings,
21 and affidavits of posting, publishing and mailing were introduced
22 in the record.
23 XIX
24 The reopened public hearing was held at the aforesaid time
25 and place and the cross- examination of MR. NOBLE MURRAY and rebut -
,r. 26 tal evidence of MR. JAMES BRETT were heard and considered by the
7
1 Board. The reopened hearing was then closed and the Board of
2 Directors took the matter under submission.
3 xx
4 On or about November 20, 1975, the Board of Directors of
5 SOUTH TAHOE PUBLIC UTILITY DISTRICT adopted Resolution No. 1998,
6 which resolution determined as follows:
7 NOW, THEREFORE, THIS BOARD DOES HEREBY FIND,
DETERMINE and ORDER that Resolution No. 1830,
8 A Resolution and Order Adopting Engineer's
Report, Confirming the Assessment and Order -
9 ing the Work and Acquisitions, adopted by this
Board on July 23, 1973, should not be amended
10 or rescinded, and no changes and modifications
Z� should be made in said proceedings, by reason
<< 11 of the matters and things presented at said
mm reopened hearing.
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13
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J oy 15 of the record that the assessments as finally confirmed are not
16 proportional to the benefits received or that no special benefits
17 could or would accrue to the real property assessed. Substantial
18 evidence is contained in the record of the proceedings had before
19 the Board of Directors of SOUTH TAHOE PUBLIC UTILITY DISTRICT to
20 sustain the Board's determination that the lands of plaintiffs
21 and each of them are specially benefited in proportion to the
22 amount of their respective assessments, and this Court so finds.
23 XXII
24 The Court further finds from the record of the proceedings
25 that the following property owners failed to file written protests
26 at or before the time set for hearing:
8
1 Assessment Number Property Owner
2 71 -1 -56 Episcopal Bishop No. Cal
71 -1 -57 Street, Frances I. Price
3 71 -1 -60 Street, Frances I. Price
71 -1 -65 Dorrance, Jacquelyn Karel
4 71 -1 -83 Cummings, Ross
71 -1 -85 Hanson, Casper H.
5 71 -1 -93 Oxtoby, Lowell G.
71 -1 -117 Wythe, William W.
6 71 -1 -118 Glitzner, Rolf Peter
71 -1 -122 Whitaker, Douglas Hunt
7 71 -1 -129 Gurish, Harold
71 -1 -131 Foiles, Keith A.
8 71 -1 -132 Staples, John H.
71 -1 -139 Lind, Christen N.
9 71 -1 -155 Bjorkman, Richard H.
71 -1 -160 Roberts, Emily B. and
3 10 McKinney, Francis J.
71 -1 -161 Grant, Gartley and
11 Von Schmidt, Barbara
71 -1 -162 Diefenbach, Karl B.
.a ▪ °
° O" 12 71 -1 -163 Grant, Gartley
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w—" 71 -1 -165 Hayden, Robert E.
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13 71 -1 -168 Gardner, Herbert C.
• ' ‘ 71 -1 -192 Barber, Thomas E.
o ^) 14 71 -1 -204 Fredericks, William C. and Susan
1V2.0
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CI 15 XXIII
d
16 The Court finds from the record of the proceedings that the
17 following property owners filed written protests at or before the
18 time set for hearing but failed to appear and offer any evidence
19 in support of their respective protests:
20 Assessment Number Property Owner
21 71 -1 -73 Alden, John G.
71 -1 -75 Bassett, Lucile F.
22 71 -1 -77 Blaisdell, F. E.
71 -1 -96 Boezinger, William H.
23 71 -1 -181 Bourne, George
71 -1 -183
24 71 -1 -159 Briddon, Albert
71 -1 -166 Brooks (Aguirre), Geneva
25 71 -1 -91 Brooks, Helen
71 -1 -92 Buckham, Grace S. & Bayard
fli 26 71 -1 -182 Campen, Howard W.
9
1 Assessment Number Property Owner
2 71 -1 -123 Cline, Joseph W.
71 -1 -124
3 71 -1 -130 Codding, Dorothy P.
71 -1 -54 Craven, Barbara G. & William P.
4 71 -1 -48
71 -1 -51
5 71 -1 -55
71 -1 -125 Delfs, Edwin R.
6 71 -1 -169 Doyle, Robert B. & Thomas M.
71 -1 -137 Dunkeson, Robert & 011ie Mae
7 71 -1 -142 Egan, R. D.
71 -1 -114 Etcheverry, Bernard E.
8 71 -1 -66 Ganza, Alexander N.
71 -1 -172 Gregory, Beverly E. and
9 71 -1 -173 Gurchot, Charles
71 -1 -214 Grubb, John J. & Roberta L.
a 10 71 -1 -136 Gundersen, Howard B.
71 -1 -188 Hammett, Robert L.
> a a 11 71 -1 -110 Hoag, Roger W.
;Ce0Z�
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o^ 71 -1 -128 Hockel, John & Marion
oJWLL 12 71 -1 -140 Houghton, Eugene J. & Beverley E.
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0?`4: 71 -1 -86 Houston, Jean D.
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71 -1 -61 Jones, Sybil S.
Zc = a0 71 -1 -109 King, Louise P.
°�� *a 14 71 -1 -50 Kincade, Elizabeth P.
Z W z Q F
° ZoN 71 -1 -174 Knuth, Eleanor Virginia
= 15 71 -1 -105 Koch, Carl R.
, 71 -1 -88 Loomis, Albert G.
16 71 -1 -164 Low, Claire D.
71 -1 -67 Lyon, Michael T. & Vicki M.
1 71 -1 -70 Maderious, William & Jennie
71 -1 -71
18 71 -1 -72
71 -1 -126 May, Harold A. & Doris D.
19 71 -1 -127
71 -1 -120 McCaffrey, Robert L.
20 71 -1 -102 McCallum, Phyllis Jorgensen
71 -1 -157 McClay, Eugenta L.
21 71 -1 -106 McGuire, A. W.
71 -1 -63 McLeod, Duncan A. Jr.
22 71 -1 -79 Miller, James
71 -1 -49 Miller, John J. III
23 71 -1 -138 Mohrman, John C.
71 -1 -104 Morgan, D. L.
24 71 -1 -199 Morris (Lindsay, Geraldine K.
71 -1 -81 Mower, Philip
25
71 -1 -197 P- Squared, a Partnership
kilt 26 71 -1 -141 Pope, Saxton
71 -1 -175 Price, Marsden
10
1 Assessment Number Property Owner
2 71 -1 -196 Rogers, Barbara S.
71 -1 -78 Rutherford, Amy O.
3 71 -1 -179 Schmidt, Theodore R.
71 -1 -180
4 71 -1 -80 Schulze, Klothilde T.
71 -1 -76 Sherman, Ursula F. & Saul
5 71 - 1 - 82
71 -1 -158 Sibley, Corydon I.
6 71 -1 -200 Smith, Mansfield F. W.
71 -1 -89 Stedman, Marcus
7 71 - 1 - 90
71 -1 -74 Stumbos, John D. Jr.
8 71 -1 -176 Swan, Janet Heald
71 -1 -203 Taggart, Richard T.
9 71 -1 -133 Thompson, Verne W. & Marie A.
71 -1 -134
10 71 -1 -171 Thomspon Verne W. (Lakeview
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,<>< 71 -1 -97 Tomlinson, Henry W.
m0ozr 7 1 -1 -190 Turley, Suzanne E.
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° W 2 LL 12 71 -1 -111 Walcott, H. W.
fZ *6 71 -1 -135 Wilson, Mary Margaret
W� 13 71 -1 -189 Wright, Samuel L. Jr.
„ a
71 -1 -191
°yam *° 14
rozd
"od 15 XXIV
3 2
16 The Court finds that plaintiff, FALLEN LEAF PROTECTION
17 ASSOCIATION, does not own any real property within the boundaries
18 of the assessment district nor did the written protest of same
19 contain a description of any real property owned by the aforesaid
20 association.
21 XXV
22 The FALLEN LEAF PROTECTION ASSOCIATION protest stated, inter
23 alia, at page 1, as follows:
24 This letter constitutes the protest of the
Fallen Leaf Protective Association and those
25 property owners who by reference have incorp-
otic rated the factual matter and contentions
26 contained herein in their respective protests.
11
1
XXVI
2 There is substantial evidence in the record of the proceeding -
3 to support the Board of Directors determination of the need and
4 necessity of the project in question.
'5
6
CONCLUSIONS OF LAW
7 ASSESSMENT PROCEEDINGS
8 I
9 The determination of the Board of Directors of defendant
10 SOUTH TAHOE PUBLIC UTILITY DISTRICT that the property of plaintiffs
,
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_, > <� 11 and each member of. the class represented by plaintiffs was
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2 _100„;,
12 specially benefited by the
ccst�� p y y proposed acquisitions and improvements
O: 13 and the Board's determination as to the amount of special benefits
°N =d 14 are supported by substantial evidence contained in the record of
wi<
15
30 the proceedings.
16 II
17 Any defects, irregularities, errors or omissions which may
18 have occurred during the course of the proceedings leading up to
19 the formation of Assessment District 1971 -1 have been cured by the
20 curative provisions of the Improvement Act of 1911, which curative
21 provisions are incorporated into the Municipal Improvement Act of
22 1913.
23 III
24 Assessment District 1971 -1 was duly and regularly formed and
25 established under and pursuant to the Municipal Improvement Act of
26 1913 and bonds to be issued upon the unpaid assessments pursuant to
13
1 the Improvement Bond Act of 1915, and all proceedings Improvement p edings undertaken
2 by defendant SOUTH TAHOE PUBLIC UTILITY DISTRICT in the formation
3 of Assessment District 1971 -1 are valid and lawful.
4 IV
5 All individually named plaintiffs and members of the class
6 represented by plaintiffs who failed to file written protests at
7 or before the time set for hearing have waived their right to have
8 any or all issues raised in the Complaint determined by the Board
9 or this Court.
10 v
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> < >Q 11 All individually named plaintiffs and members of the class
4000
zo oa ^ 12 represented by plaintiffs who filed written
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I- U1 - P Y P protests but failed to
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ov 13 present evidence to the Board in support of each or any ground
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9, *a 14 of objection contained in their respective written protests have
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o �� 15 waived their right to challenge their respective assessments on
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16 the grounds stated in their written protests or upon any issues
17 raised in the Complaint.
18 VI
19 The record shows and the Court finds that all real property
20 that was specially benefited was included within the boundaries
21 of Assessment District 1971 -1 and all real property not specially
22 benefited by the acquisitions and improvements was excluded from
23 said boundaries and all assessments were uniformly and equally
24 spread in accordance with law.
25 //
26 //
14
•
1
To avoid redundancy and repetition, private
landowners within the proposed sewer improvement
2 district 1971 -1 have by reference incorporated
the arguments set forth in this protest to the
3 Board of Directors of the South Tahoe Public
Utility District.
4
5 Twenty -one property owners filed individual protests repre-
senting 24 parcels of real property within the assessment district
7 and in some way referred to the FALLEN LEAF PROTECTION ASSOCIATION
8 protest. Set forth below is a list of said property owners who
9 referred to the FALLEN LEAF PROTECTION ASSOCIATION protest.
= 10 Assessment Number Property Owner
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,4>4 r 11 71 -1 -103 Andersen, Jt.an C.
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°c^ 12 *71 -1 -94 Barrows, Helen Wolfenden
WH ° 71 -1 -181 Bourne, George
Can ..
o's6F 71 -1 -183
W2 13 71 -1 -156 Clampitt, Daniel I.
71 -1 -52 Clifton, Olga C.
14
•
71 -1 -95 Colyear, B. H. Jr.
gm >ozd
Z11124/- 71 -1 -116 Dobbins, Leslie E.
3oa 15 71 -1 -108 Duzanica, John N. Jr.
71 -1 -153 Fallen Leaf Security Assn.
16 71 -1 -119 Henley, Leila I.
71 -1 -198 Miller, Norman Hawley
17 71 -1 -185 Packard, Lucile S.
71 -1 -186
18 71 -1 -184 Perkins, Isabella H.
19 71 -1 -170 Pischel, Margery L.
71 -1 -194
20 71 -1 -195 Pischel, H. D.
71 -1 -62 Reed, Mildred D.
21 71 -1 -121 Reid Travel Assoc.
71 -1 -64 Rogers, William R.
22 71 -1 -68
71 -1 -115 Rorie, Fred E.
71 -1 -53 Weiking, Harriet, Price
23 *71 -1 -94 Wolfenden, Leland E.
24 *Helen Barrows and Leland Wolfenden each filed
25 a written protest regarding assessment number
71 -1 -94.
26 //
12
S
1 FINDINGS OF FACT
ENVIRONMENTAL PROCEEDINGS
2
3 XXVII
4 On March 29, 1973, the Board of Directors of SOUTH TAHOE PUBLIC
5 UTILITY DISTRICT adopted Resolution No. 1781 entitled "A Resolution
6 Directing the Preparation of a Draft Environmental Impact Report,
7 Assessment District 1971 -1." Said Resolution determined, among
8 other things, that:
9 (a) The project could have a significant effect on the
= 10 environment; and
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N'a 11 (b) The District Engineer should
). z oz n g prepare a Draft Environmen-
0002 12 tal Impact Report in compliance with Public Resources Code § 21100,
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fd 14 XXVIII
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an 15 On April 5, 1973, the Board of Directors of SOUTH TAHOE PUBLI•
16 UTILITY DISTRICT adopted Resolution No. 1784 entitled "A Resolution
17 Approving Draft Environmental Report, Directing Filing of a Notice
18 of Completion Thereof, and Circulation of Report for Comment
19 Thereon and Appointing Time and Place of Hearing Thereon."
20 XXIX
21 Pursuant to Resolution No. 1784, the District Clerk:
22 (a) Duly filed a Notice of Completion of said Report with
23 the Secretary of the Resources Agency of the State of California,
24 which notice described the project and its location and stated
25 that copies of said Report were available for review at the Dis-
„r 26 trict office;
15
•
1 (b) Filed a copy of said notice at the District office and
2 made same available for public inspection;
3 (c) Mailed copies of the Draft Environmental Impact Report
4 for review and comment to all public agencies having jurisdiction
5 by law over said project and to such public agencies or persons
6 who may have special expertise concerning the project and environ-
7 mental matters related thereto;
8 (d) Advised agencies and persons receiving said Report that
9 they may submit written comments to the District concerning said
=a 10 Report within thirty days after the date of mailing with provisions
> " 11 for extending said time period;
▪ z o z r
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13 -"LL: 12 (e) Copies of said Draft Environmental Impact Report were
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fi 13 filed with the District office and made available for public
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14 review and inspection;
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_ao.� (f) Duly posted and published notice of public hearing on
16 said Report and project in accordance with law; and
17 (g) A Certificate of Posting, Publishing and Mailing was
18 executed by the District Clerk and made part of the record of the
19 proceedings.
20 XXX
21 A public hearing on said Report and project was duly held
22 pursuant to the aforesaid notice and all persons desiring to be
23 heard were given an opportunity to be heard on all aspects of the
24 project.
25 XXXI
k,r, 26 None of the plaintiffs except WILLIAM CRAVEN appeared at the
16
1 public hearing aforesaid.
2 XXXII
3 Comments were received and responses to said comments were
4 duly prepared and made part of the Final Environmental Impact
5 Report.
6 XXXIII
7 The Court finds that both the Draft and Final Environmental
8 Impact Reports substantially comply with the state and local guide -
9 lines both as to content and procedure, and said Final Report is
10 objective, informative and professionally prepared.
= • J
> • a'Q 11 XXXIV
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Z °o 12 The Final Environmental Impact Report objectively discusses,
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14 the project location and boundaries together with appropriate maps;
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C4 15 a statement of the objectives sought by the proposed project; a
16 general description of the project's technical economic and environ
17 mental characteristics; the principal engineering proposals and
18 supporting public service facilities; a description of the project'-
19 environmental setting, the project's environmental impact, includ-
20 ing the environmental impact of the proposed action; any adverse
21 environmental effects which cannot be avoided if the proposal is
22 implemented; mitigation measures to minimize the impact; alterna-
23 tives to the proposed action, including no project; the relation -
24 ship between local short -term uses of man's environment and the
25 maintenance and enforcement of long term productivity; any irrevers
26 ible environmental changes which would be involved in the proposed
17
the 1 action should it be implemented; the growth - inducing impact of the
2 proposed action; organizations and persons consulted and the
3 project's water quality aspects.
4 XXXV
5 It is not true that plaintiffs, and each of them, and the pur-
6 ported class represented by plaintiffs did not receive adequate
7 notice of the public hearing or adequate time to review and comment
8 upon the Draft Environmental Impact Report.
9 XXXVI
10 There was no conflict of interest on the part of the persons
m,
u
>a'Q 11 preparing the Environmental Impact Reports.
� ce 0Z
ZJoa^ 12 XXXVII
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13 On May 17, 1973, the Board of Directors of SOUTH TAHOE PUBLIC
Q W d
= H 2
14 UTILITY DISTRICT adopted Resolution No. 1801 entitled "A Resolution
>ozd
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N z N
S od 15 Approving Final Environmental Impact Report and Authorizing Filing
16 of Notice of Determination," wherein said Board determined as
17 follows:
1 8 1. That the aforesaid Final Environmental
Impact Report is hereby approved and
19 adopted by this Board.
20 2. That the Project will not have a signi-
ficant effect upon the environment;
21
3. That, following approval of the Project,
22 if this Board in fact determines to approve
the Project, the Clerk should be and is
23 hereby authorized and directed to file in
the office of the County Clerk of the
24 County of El Dorado a Notice of Determina-
tion for said Project which Notice shall
25 contain the decision of the District to
approve the Project, the determination of
26 this Board that the Project will not have
a significant effect on the environment
18
1 and a statement that an environmental impact
report has been prepared for a Project.
2
3 XXXVIII
4 On July 24, 1973, the Clerk of the District filed with the
5 County Clerk a Notice of Determination pursuant to the terms of
6 Resolution No 1801.
7 XXXIX
8 The Board of Directors of SOUTH TAHOE PUBLIC UTILITY DISTRICT
9 did not abuse its discretion in approving the project or in
10 determining that the project will not have a significant effect
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> a '<. 11 on the environment.
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` ` 13 There is substantial evidence in the record of the proceedings
° *d 14 to support the Board's determination to approve the project.
• -ozd
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J •O
15 XLI
O
3 �
16 There is substantial evidence in the record to support the
17 Board's determination to approve the Final Environmental Impact
18 Report.
19 XLII
20 The record shows and the Court finds that the Final Environ-
21 mental Impact Report is in all respects adequate and in compliance
22 with Public Resources Code § 21000, et seq.; both as to content
23 and procedure.
24
CONCLUSIONS OF LAW
25 ENVIRONMENTAL PROCEEDINGS
r 26 //
19
Oho 1
2 The environmental proceedings conducted by the SOUTH TAHOE
3 PUBLIC UTILITY DISTRICT was in substantial compliance with Public
4 Resources Code § 21000, et seq.
5 II
6 The Draft and Final Environmental Impact Report substantially
7 comply with state and local guidelines as to content and procedure.
8 III
9 The Board of Directors of SOUTH TAHOE PUBLIC UTILITY DISTRICT
a 10 did not abuse its discretion in approving the project or in
= 4
> > 4 11 determining that the project will not have a significant effect
i C 0 Z
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O J W W e 12 on the environment.
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° „mod 14 There is substantial evidence in the record of the proceedings
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o 15 to support the Board's determination to approve the project.
16 v
17 There is substantial evidence in the record to support the
18 Board's determination to approve the Final Environmental Impact
19 Report.
20 VI
21 The record shows and the Court finds that the Final Environ-
22 mental Impact Report is in all respects adequate and in compliance
23 with Public Resources Code § 21000, et seq., both as to content
24 and procedure.
25 VII
26 Plaintiffs failed to exhaust their administrative remedy by
20
1 failing to appear at the public hearing and voice their objections
2 to the procedure followed and the content of the Draft Environ-
3 mental Impact Report.
4 VIII
5 Plaintiffs received adequate notice of the public hearing
6 held in connection with the Draft Environmental Impact Report.
7 IX
8 Plaintiffs received adequate notice in time to review and
9 comment on the Draft Environmental Impact Report.
10 X ,
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>a�Q 11 There was no conflict of interest on the part of the persons
b • CC
Z°oo 12 who prepared the Draft and Final Environmental Impact Reports.
R
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lor d: 13 Let judgment be entered accordingly.
W
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a 20 15 Dated: 5LP 2 31976
J � d
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16
WILLIAM E. BY..
17
WILLIAM E. BYRNE
18 Judge of the Superior Court
19
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RESQLUTION NO. 2054
' SOUTH TAHOE PUBLIC UTILITY DISTRICT
•
' `^ "s t.�
• S E P 13 1976
kie NOT TO BE PUflLISHED IN OFFICIAL REPORTS
C - 0 - P - Y
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE THIRD APPELLATE DISTRICT
(El Dorado)
FALLEN LEAF PROTECTION ASSOCIATION ) 3 Civil 15687 .
et al., )
) (Super. Ct. No. 22677)
Plaintiffs, Cross - defendants )
and Appellants, )
v. ) I D
SEF 1- 1976
THE STATE OF CALIFORNIA et al . , IOURT OF r;r;•Er;i.- .- Ti-ERD DISTRICT
\VILFRIZD !. I:P,At, ".:^„ C:crk
•
Defendants, Cross-complainants )
rr and Respondents. )tr
This is an appeal by the plaintiffs (and cross -
defendants) from the trial court's order dismissing their
complaint, striking their answer to the defendant's cross -
complaint, and entering summary judgment in favor of the
defendant State of California.
A. Factual and Legal History
"Plaintiffs are the owners of private parcels of
property surrounding Fallen Leaf Lake, which lies within the
1 This matter was the subject of a prior appeal. (Fallen Leaf
Protection Assn. v. State of California (1975) 46 Cal.App.3d
816.) In the original action, the plaintiffs named several
defendants. In this action we are concerned only with the defend-
thole ants the State of California Water Resources Control Board and
the Lahontan Regional Water Control Board ( "State ").
1
•
ilk South Tahoe Public Utility assessment district and the Lake
Tahoe watershed. The owners of these properties are disposing .
of waste through the use of cesspools and septic tanks, and are
not placing their waste into a sewer system or holding tanks.
"In 1969 the Legislature enacted sections 13950 and
and 13951 of the Water Code which provide as follows:
"'13950. Nothwithstanding any other provision of law,
upon any district in the Lake Tahoe Basin providing•in any area
of the district a sewer system and treatment facilities sufficient
to handle and treat any resultant waste and transportation facil-
ities sufficient to transport any resultant effluent outside the
Lake Tahoe Basin, the further maintenance or use of cesspools or
*other means of waste disposal in such area is a public nuisance
•
and the district shall require all buildings from which waste is
discharged to be connected with the sewer system within a period of,
not less than 90 days from the completion of such system and
facilities.'
"'13951. Notwithstanding any other provision of law,
on or after January 1, 1972, waste from within the Lake Tahoe
watershed shall be placed only into a sewer system and treatment
facilities sufficient to handle and treat any such waste and
transportation facilities sufficient to transport any resultant:
• effluent outside the Lake Tahoe watershed, except that such waste
may be placed in a holding tank which is pumped and transported
to such treatment and transportation facilities.
"'As used in this section "waste" shall not include
solid waste refuse. •
•
2
•
•
"The further maintenance or use of cesspools, septic
•
the tanks, or other means of waste disposal in the Lake Tahoe water-
shed on or after January 1, 1972, by any person, except as per-
mitted pursuant to this section, is a public nuisance. The
occupancy of any building from which waste is discharged in
violation of this section is a public nuisance, and an action
may be brought to enjoin any person from occupying any such
building.
"'This section shall not be applicable to a particular
area of the Lake Tahoe watershed whenever the regional board for
the Lahontan region finds that the continued operation of septic
tanks, cesspools, or other means of waste disposal in such area
will not, individually or collectively, directly or indirectly,
I khr
affect the quality of the waters of Lake Tahoe and that the
sewering of such area would have a damaging effect upon the
environment.
"'This section shall not affect the applicability of
Section. 13950.'
"Pursuant to these statutes, the South Tahoe Public
Utilities District (hereafter 'STPUD') sought to construct a
sewer collector line around the shores of Fallen Leaf Lake. Plain-
tiffs objected to these proceedings and the subsequent litigation
ensued.
"On August 14, 1973, plaintiffs filed a petition and
complaint seeking a writ of mandate, a writ of prohibition, declara-
tory and injunctive relief. Plaintiffs named as defendants the
3
•
•
following parties: STPUD, the State of California Water Resources
Control Board, the Lahontan Regional Water Control Board, and the•
County of El Dorado.
"Plaintiffs made a broadside attack upon the proposed
construction of the sewer line and the assessment of plaintiffs'
properties for the cost of line. In particular, the plain-
tiffs contended: (1) there is no need for the sewer project and,
if implemented, will have an adverse effect on the environment
of Fallen Leaf Lake and Lake Tahoe; (2) STPUD did not comply
with the provisions of the California Environmental Quality Act
(Pub. Resources Code, § 21000 et seq.); (3) STPUD did not comply
with the federal National Environmental Policy Act of 1969 (
U.S.C. § 4321 et seq. ['NEPA']); and (4) STPUD did not comply
with the provisions of the Municipal Improvement Act of 1913
(Sts. § Hy. Code, § 6468 et seq.).
"The apparent sole claim against the State Water
Resources Control Board and the Lahontan Regional Water Quality
Control Board (hereafter 'State') was that they had brought
improper political pressure upon STPUD to construct the sewer line.
"The State filed an answer and, in general, denied that
STPUD was exposed to any improper political pressure or that
plaintiffs will suffer environmental damage by reason of STPUD's
actions. They also alleged that plaintiffs should be denied all
relief since they had not complied with Water Code sections 13950
and 13951.
"The State also filed a cross - complaint seeking to
restrain plaintiffs from occupying any buildings on their property
4
. ,
•
r in the Fallon Leaf Lake area unless and until their buildings
were connected to a sewer system of the STPUD or a holding tank.
"Sometime in the early part of February 1974, the
plaintiffs filed a claim with the Board of Control (sce Gov. Code
§§ 940.2, 945.4) for the sum of $5,000,000,000, or in the alter-
native, a sum equal to the fair market value of certain interests
in real property, including existing sewage disposal systems
owned by plaintiffs. This claims was based on the State's cross
complaint.
"The claim was denied by the board and 'CROSS - COMPLAINT
IN INVERSE CONDEMNATION' followed. This claim was also based
upon the filing of the State's cross - complaint. Although inart-
fully worded, the plaintiffs' cross - complaint also attempts to
set forth acts constituting slander of title, abuse of process
and trespass. In particular, plaintiffs' cross - complaint chal-
lenges ttie constitutionality of sections 13950 and 13951 of the
Water Code.
"The State filed a general demurrer to the plaintiffs'
cross - complaint and the trial court sustained the demurrer, stating:
"'The demurrer of the defendant STATE OF CALIFORNIA to
• the cross - complaint is sustained without leave to amend on the
grounds that no cause of action has been stated for the reason that
direction to comply with Section 13951 of the Water Code is a valid
exercise of the police power of the State of California. "' (46 Cal.
App.3d 816, 819 -822, fns. omitted.)
In the prior appeal, we ruled the many contentions of
5
plaintiffs to be without merit. This court affirmed the judgment
of dismissal of plaintiffs' self- styled "cross - complaint" and_
held that sections 13950 and 13951 of the Water Code were consti-
tutional. A petition for rehearing *was denied on April 21, 1975
(3 Civ. 14827), and plaintiffs' petition for a hearing by the
California Supreme Court was denied on May 28, 1975. (46 Cal.
App.3d at p. 831.) _
B. Present Proceedings
On August 6, 1975 (after the remittitur issued), the
State filed a notice of motion for summary judgment as to both
the plaintiffs' complaint and the State's cross - complaint.
Against plaintiffs' complaint, the motion leas "made on
the grounds that the action has no merit in that the allegations
that the 'political pressure' was 'improper' was based solely
upon the premise that Water Code sections 13950 and 13951 were
unconstitutional, which assertion was rejected in Fallen Leaf
Protection Association, etc., et al., v. South Lake Tahoe Public
Utility District, etc., [46 Cal.App.3d 816]." *Original emphasis.)
The motion for judgment on the cross - complaint was
made on the ground that "there is no defense to the cross - complaint
in that cross - defendants [plaintiffs] have admitted all facts
necessary to bring them within the prohibition of Water Code section
13951 and to therefore entitle cross- complaint [sic] People of the
State of California to an injunction under the provisions of that
section."
kire The State supported its motion for summary judgment with
6
the affidavit of David Dubois and a memorandum of points and
authorities.
On August 21, 1975 in opposition to the State's motion
for summary judgment, plaintiffs filed their objections, points
and authorities, and the declaration of Bernard Etcheverry, a
property owner and president of the Fallen Leaf Lake Protection •
Association.
The plaintiffs argue that "[t]he issue presented to
this court [the trial court] by plaintiffs was whether or not
this court should enjoin the State of California from further
usurping the legislative functions of the public utility district."
•
• 2 The full text of this affidavit reads as follows:
"I, David F. Dubois, am. a Supervising Water
p � Quality Control
Engineer for the California Regional Water Quality Control Board,
Lahontan Region, and have been employed by the Board at Lake Tahoe
since 1967.
"I am personally familiar with the sewage disposal facilities
servicing the Stanford Alumni Property at Fallen Leaf Lake. Said
sewage facilities consist of collection lines and Lift stations
transporting the waste to central locations. Said waste, however,
• is treated only through a septic tank and is disposed of in leach
fields and cess pools and is not placed into transportation
facilities sufficient to transport any resultant effluent outside
the Lake Tahoe Watershed. As such, said sewer system is not the
type of sewer system contemplated under Water Code Section 13951.
"I declare under penalty of perjury that the above is true and
correct."
3 In general, Etcheverry declares he is installing d self - contained
facility for treatment of toilet waste; STPUD has not provided treat-
ment or transportation facilities sufficient to treat the waste from
plaintiffs' properties; and, STPUD has not attempted to provide a
sewer.system to handle the waste from plaintiffs' properties in the
tire
Fallen Loaf area.
7
•
•
•
The opposition to the cross - complaint was based on
the alleged fact that "[t]he moving party has utterly failed_
to set forth in declaration form or in any manner demonstrated
that each of the elements of its cross- complaint has been
factually resolved in its favor, or that no triable issue of
fact remains to be tried."
On September 29, 1975, the trial court granted the
State's motion for s :itrnary judgment. The order of the court
reads, in part, as follows:
"IT IS ORDERED THAT the complaint is dismissed; the
answer to the cross-complaint is stricken and that judgment be
entered in accordance with this order in favor of defendant and
cross - complainant People of the State of California and against
plaintiffs and cross- defendants as prayed for in the answer and
cross - complaint of defendant and cross - complainant People of
the State of California."
The plaintiffs appeal from the order dismissing their
complaint . 4 •
4 The notice specifically designates that the appeal is from the
order dismissing the complaint. "A notice of appeal shall be
liberally construed in favor of its sufficiency. (Cal. Rules of
Court, rule 1, subd. (a).) Neverthless, "a notice specifically
describing a certain part of the judgment will not bring up the
• whole judgment. This is not a case of misdescription, but rather
of a -clear intention to appeal from only a part of the judgment."
(6 Witkin, Cal. Procedure (2d ed. 1971)' Appeal, § 333, p. 4311.)
Thu:, it would appear that the portion of the judgment in favor
of the State as prayed for in its answer and cross - complaint for
injunctive relief is not properly before us for review and there-
fore roust be affirmed. (See Glas<:co v. El Serene Country Club,
Inc. (1932) 217 Cal. 90, 91 -92.)
8
1. Sufficiency of the Affidavits
The plaintiffs contend the trial court erred in grant-
ing the motion for summary judgment in that the documentation
submitted in support of the State's motion was insufficient.
This argument is made with respect to both the plaintiffs'
complaint and the State's Cross - complaint.
Preliminarily, plaintiffs note the general principles
set forth by the court in Newport v. City of Los Angeles (1960)
184 Cal.App.2d 299, 234:
"The purpose of the summary judgment procedure is to
provide a method for the prompt disposition of actions whe:'e •
there is, in fact, no triable material issue. [Citations.] The
court's duty is limited to the determination of whether of not
factual issues are presented by the affidavits and it is no part
of the court's duty to make any factual determination. [Citation.]
The procedure authorized by section 437c is, of course, a drastic
one requiring caution in its application and may not be used as a
substitute for the traditional methods of determining factual
issues [citations] and, as pointed out by plaintiff, the support-
ing affidavits of the moving party are to be construed strictly
and those of the opponent, liberally; for purposes of a motion
for summary judgment those facts alleged in the opposition affidavit
must be accepted as true. "
p [Citations.1"
In general, see Zack, The 1973 Summary Judgment Act - New Teeth
for an Old Tiger 48 State t;rir J. 654.
9
•
With regard to the sufficiency of the affidavits;. the
court in Estate of Nelson (1964) 227 Cal.App.2d 42, 46, stated
as follows:
. A summary judgment will stand if the support-
ing affidavits state facts sufficient to sustain a judgment and
the counteraffidavits do not proffer competent and sufficient
evidence to present a triable issue of fact. . . . In making
this determination the respective affidavits are tested by
certain applicable rules. The affidavit of the moving party trust
. satisfy three requirements: (1) It must contain facts sufficient
to entitle the moving party to a judgment, i.e., facts establish-
ing every element necessary to sustain a judgment in his favor;
(2) such facts must be set forth with particularity, i.e., all
requisite evidentiary facts must be stated, and not the ultimate
facts or conclusions of law; and (3) the affiant must show that
if sworn as a witness he can testify competently to the evidentiary
facts contained in the affidavit. . . . "' •
The plaintiffs allege that .their complaint against the
State seeks injunctive relief restraining the State from inter-
fering with or improperly influencing STPUD in the lawful discharge
of its legislative duties with respect to the proposed sewer project.
They argue that the State, as the party moving for summary judgment,
was required to establish by competent evidence that it did not
improperly exert pressure on STPUD, to the end effect that the
district board made its determination to proceed with the sewer
line project because of financial pressure from the State as opposed
10 .
to those considerations warranting the initiation of assessment
proceedings. Plaintiffs contend the sole affidavit (Dubois)
filed by the State is utterly devoid of any averment:: relating
to issues framed by plaintiffs' complaint against the State and
the Stace's answer thereto. They maintain that absolutely no
evidentiary basis was furnished by the State in support of its
motion for summary judgment on plaintiffs' complaint, and there-
fore -the trial court erred in dismissing the complaint.
•
With regard to the portion of the judgment concerning
the State's cross- complaint, the argument of the plaintiffs
appears 1:o proceed as follows:
Since the substantive allegations of the State's cross-
‘,/ complaint were denied by the cross - defendants (plaintiffs), the
affidavits of the State must demonstrate that the affiant had
personal knowledge that as to each of the cross-defendants: (a)
each occupies buildings from which waste is discharged; (b) none
are placing their waste into an adequate sewer system and treat-
ment facility or holding tanks for subsequent pumping and transpor-
tation to treatment and appropriate disposal; (c) each is main-
taining and using cesspools and septic tanks; and (d) STPUD is
providing treatment and transportation facilities to cross - defendants
sufficient to treat their waste and transport it out of the basin.
•
6 As previously noted, it would appear that no appeal was taken
from this portion of the judgment. (See fn: 4.) Notwithstanding,
plaintiffs argument regarding this particular aspect is considered
in full.
11
The plaintiffs contend that the affidavit is totally
insufficient in this regard and fails to provide any evidentiary
support for the summary judgment. In addition, the affidavit
contains ultimate facts and conclusions of law which are objec-
tionable. (See Scheblc v. Nell (1962) 200 Cal.App.2d 435, 439.)
Finally, the Dubois affidavit must stand or fall on its own -
merits since it does not incorporate any other support (such as
depositions, admissions, etc.) for the State's motion. (Cf.
Newport v. City of Los Angeles, supra, 1C4 Cal.App.2d at p. 234.)
From the foregoing, the plaintiffs conclude that the
Dubois affidavit cannot provide support for scary judgment
against any cross - defendant, including the Stanford Alumni
Association. Since they have been thrown out of court without
any examination of the factual issues upon which the State based
its cross - complaint, prejudicial error occurred.
In addition, plaintiffs claim the declaration of
Etcheverry demonstrates the following: (a) as to declarant's
property, his toilet wastes are self - contained, and therefore no
toilet waste issues from the building; and (b) the district
(STPUD) has not provided a sewage transportation system sufficient
to handle the assessees' needs.
7 Irr particular, the plaintiffs claim that the affidavit does not
purport "to satisfy State's allegation that STPUD has provided
treatment and transportation facilities sufficient to treat and
transport wastes and effluent from .cross - defendants' properties,
a necessary prerequisite to invocation of the remedies provided by
Water. Code § 13950." (Original emphasis.)
12
Y •
In summary, plaintiffs contend that not only was the
State's showing by affidavit insufficient, but that the factual
issues raised by cross - defendants (plaintiffs) clearly establish
a. factual issue to be tried by court or jury.
The State contends the trial court properly granted
its motion for summary judgment and sets forth a two- pronged
argument. The State argues the trial court could properly
consider designated answers to interrogatories in ruling on the
motion for summary judgment. It maintains the plaintiffs'
major contention is that the trial court was forbidden to consider
the answers to interrogatories filed by plaintiffs in ruling on
the motion for summary judgment, but rather was limited to con-
sidering the State's supporting affidavit.
• The first prong of the State's argument can be sum-
marized as follows: The argument of the plaintiffs ignores the
plain language of section 437c of the Code of Civil Procedure
which provides in pertinent part: "The motion shall be supported •
or opposed by affidavits, declarations, admissions, answers to
interrogatories, deposition's and matters of which judicial notice
shall or may be taken." (Emphasis added; see, Leasman v. Beech
Aircraft Corp. (1975) 48 Cal.App.3d 376, 380 [ interrogatories may
8 Plaintiffs maintain that this is a misstatement of their "major
contention." Nevertheless, they do argue that the State cannot
bolster its limited shoving (per the Dubois affidavit) with
references to other matters not incorporated in that declaration.
It is true, as the plaintiffs point out, that there is no indica-
tion in the record as to exactly what matters the trial court
relied on in reaching its decision.
13
•
be used in support of a motion for summary judgment, and admis-
sions contained therein are admissible in evidence to establish
any material fact].)
The State contends that even prior to 1973, when
section 437c was amended to specifically provide that answers
to interrogatories may be considered, the -courts were unanimous
that such answers might be considered in support of a motion for
summary judgment regardless of whether they were "incorporated
by reference" in an affidavit. (See Budd v. Niken (1971) 6 Cal.
3d 195, 201, fn. 4.)
In its notice of motion and motion for summary judgment
the State employed the following language: "This notion is based
on this notice, the pleadings, records, and files in this action,
filhor the attached memorandum of points and authorities, oral and
docunentary evidence to be presented at the hearing of the motion,
and the attached affidavit of David Dubois." The State contends
that the law is settled that documents in the file may. be con -
sidered by the court if referred to in the notice of motion for
summary judgment. (See People ex rel. Mosk v. Lynam (196 7) 253
Cal.App.2d 959, 964 -965; see also, Vallejo v. Montebello Sewer
Co. Inc. (1962) 209 Cal.App.2d 721, 734; cf. Thomson v. Honer
(1960) 179 Cal.App.2d 197, 203 -204.)
Finally, the State maintains the plaintiffs were not
left in the dark (as plaintiffs cbntended) as to what they were
required to meet. It states that the specific portions of plain-
tiff' answers were specified in great detail in the points and
14
authorities that accompanied the motion for summary judgment.
As to the second prong of its argument, the State
contends the plaintiffs have admitted that they are not complying
with Water Code section 13951 and there is, therefore, no triable
issue of fact.
In order to comply with the requirements of section
13951 of the Water Code, the plaintiffs must show that their waste
is being placed either in a sewer system or a holding tank (suf-
ficient to treat such waste) for transportation outside the Lake
.Tahoe watershed. The statute declares that the further maintenance
or use of cesspools, septid tanks, or other means of waste disposal,
other than sewer systems or holding tanks is a public nuisance.
- Fur. ther , the occupancy of any building from which waste is dis-
k,'
. charged in violation of this section is a public nuisance, and an
action maybe brought to enjoin any person from occupying any such .
building.'
The State contends that the plaintiffs, in their answers
to interrogatories, have admitted sufficient facts to establish
that they are not in compliance with the simple requirements of
Water Code section 13951.
9 In their answers and objections to interrogatories, the plain-
tiffs make the following statement: "[T]he responding parties
state that with respect to the Stanford Alumni property, a sewer
. system doe:: exist in that there are collection lines and a lift
station. However, as to all other. properties there arc no con-
nections to a 'sewer system' which feeds in turn to a sewage
treatr;�ent mint as that term is customarily used." tEniphasis
added.) Furthers ore, Zs titan oral property, the State argues
the Dubois affidavit makes. it abundantly clear that the "sewage
system' is not in compliance with Water Code section 13951 in that
it does not connect to any treatment facilities, and the resulting
effluent is not transported outside the Lake Tahoe watershed.
15
The State also contends that the admissions of plain-
tiffs' attorney before the trial court on the hearing on the
motion for summary judgment Are even more explicit (in conceding
violation of the code section) and reveal the frivolous nature
of this appeal. (See Scafidi v. Western Loan & Bldg. Co. (1946)
72 Cal.App.2d 550, 562 (admissions of counsel may constitute
proof of facts]; see also, Horn v. Atchison, T. & S.F. Ry. Co.
(1964) 61 Cal.2d 602, 605.) For example, counsel admitted
that plaintiffs were occupying the buildings, there was no sewer
collector line that connected plaintiffs' properties to STPUD's
nearest line, and they were neither exporting their wastes.nor
placing there in a holding tank, as required by law.
Finally, the State contends that the declaration of
Etcheverry is entirely insufficient. In relevant part, all
Etcheverry states is that he "is installing a self- contained
facility for treatment of toilet waste,.the end result of which
is the elimination of the discharge of these wastes from declarants'
10 The State points to a comment by counsel for plaintiffs as
substantiation for its belief that the purpose of this appeal is
simply to protract this litigation as long as possible so that
they will not have to comply with section 13951:
"MR. NORMAN: Where do we go when we're all through? By that
time they'll have completely changed their environmental policy
. and you'll find that the need for the water is so great they'll
start sanctioning basin disposal, then the hue and cry will
evaporate but we're still some years down the road from that
particular point and time because we first have to consume all
our - -."
16
•
•
•
•
home. " Nowhere does Etcheverry state that he is presently
in compliance with the statute, nor does he aver that any other
property is in compliance with section 13951 of the Water Code.
Thus, the State concludes that this lone declaration was clearly
insufficient to raise triable issues of fact. (Cf. Whitney's •
at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 270-271.)
To recapitulate, the State answered the plaintiffs'
original complainL and also filed a cross - complaint • for an inj unc- .
tion pursuant to section 13951 of the Water. Code. In the earlier
action, we held sections 13950 and 13951 of the Water Code to be
constitutional. (46 Cal.App.3d 816.) In the instant action, the
•
trial court dismissed the plaintiffs' complaint, struck the plain-
tiffs' answer to the State's cross - complaint and granted summary
judgment in favor of the State as prayed for in its answer and
cross-complaint.
The plaintiffs' main contention on appeal is that the
11 Much of the natter in Etcheverry's declaration is not germane
to the issues before us. For example, truch of 'the decla_ation is
nothing more than a criticism of the economics, logistics and
engineering details involved in the existing and proposed sewer
system and facilities. In this connection we note that the
"sufficiency" of the district's treatment and transportation
facilities is not a genuine issue of material fact as pertains to
this case. (See fn. 7.) Rather, the issue is whether or not
plaintiffs have complied with the statute. If they arc not in
compliance, they may be enjoined from occupying buildings on the
• property from which waste is improperly discharged. (Wat. Code,
§ 13951.)
12 In 1975, a new paragraph was added to section 13951 relating
solely to the area within the Fallen Leaf Lake watershed. There
is no allegation, however, that this new language is applicable
to the instant case. •
17
trial court erred in granting the motion for summary judgment
since the documentation submitted in support of the State's
motion was insufficient. After a careful review of the complete
record in this case (and the record in the prior proceeding), we
reject this contention.
Preliminarily, the contention of plaintiffs that the
trial court (and this reviewing court) are restricted to the
Dubois affidavit in passing on the motion is meritless. The
State, as the moving party, clearly spec•ified the papers it was
relying upon in making its motion. Thus, the trial court could
properly examine all of the documents in the file which the
notice incorporated. (Code Civ. Proc., § 437c; People ex. rel.
Mosk v. Lynam, supra, 253 Cal.App.2d at pp. 964 -965; Larsen v.
Johannes (1970) 7 Cal.App.3d 491, 496.)
As to plaintiffs' complaint, the apparent sole claim
against the State was that it had brought improper political
pressure to bear upon the district to implement the provisions of
sections 13950 and 13951 of the Water Code. Such an allegation
is entirely irrelevant in view of the issues involved herein.
It has nothing to do with the waste removal and public nuisance
provisions of section 13951, and thus presents no triable issue
of fact. If these allegations were in fact b ?sed in any way upon
the constitutionality of these two sections, such fears have since
been laid to rest by this court. Thus, the trial court did not
err in striking the complaint as to the State.
k re The State's cross - complaint merely alleges that the
18 .
plain_:iffs are acting in contravention of. section 13951. Plain-
tiffs have, in effect, admitted (through answers to interrogatories
and by counsel) that they are in violation of section 13951.
Hence, there is no issue to be determined. (See Buffalo Arms, Inc.
v. Remler Co. 179 Cal.App.2d 700, 703.) Since the plaintiffs
have admitted all of the facts necessary to bring them within the
prohibition of section 13951, the trial court did not err in grant-
ing the State's motion for summary judgment. In essence, there
is simply no substantial issue to be tried. (See Walsh v. Walsh
(1941) 18 Cal.2d 439, 442.) We conclude that the documentation
submitted in support of the State's motion was sufficient.
There is one other point that dust be considered, how-
ever. The plaintiffs also contend that the trial court erred in
dismissing the complaint when the motion before it was :limited to
that portion of the cause of action alleged against the moving
party. In their brief the plaintiffs state:
"The only factual issue between plaintiffs (rIew appel-
lants) and the State of California centered around plaintiffs'
allegations that the State had e.:ercised improper pressure on the
board of STPUD and the prayer which sought injunctive relief from
this conduct.
"Regardless of whether or not the moving party's affi-
davit or other papers supported the State's claim with respect
to this issue, the motion could not affect the cause of action
stated against the district who was not a party to the motion. "
13
The State makes no reply to this contention.
19
o -
•
The motion for summary judgment was made by and on
behalf of the State. The order of the trial court, in part,
dismissed plaintiffs' complaint. However, since only the State
was before the trial court (and not the district), the judgment
of the court can affect only the State and the plaintiffs.
The judgment is affirmed.
REGAN, J.
1 concur:
•
PUGLIA, P.J.
20 .
• a
. I concur in the general result reached by the
majority. However, I view the.contentions on appeal to
be frivolous and do therefore respectfully dissent from
the declination of the majority to impose sanctions.
Basically, plaintiff's contentions may be
summarized as follows:
•
1. The granting of the summary judgment was not
supported by sufficient documentation; and -
2. The trial court erred in determining that
. there was no triable issues and that the State should not be
restrained from exerting pressure upon STPUD to perform
its duty and enforce applicable state laws. • -
With reference to supporting data available to
the court, section 437c of the Code of Civil Procedure
provides in pertinent part: "The motion shall be supported
or opposed by affidavits, declarations, admissions,
answers to interrogatories, depositions and matters of
which judicial notice shall or may be taken_." (Emphasis
added.) The motion for summary judgment was. accompanied
•
by an affidavit of David Dubois, the memorandum of points
1/
The full text of this affidavit reads as follows:
"I, David F. Dubois, am a Supervising Water Quality
Control Engineer for the California Regional Water Quality
Control Board, Lahontan Region, and have been employed by
the Board at Lake Tahoe since 1967.
"I am personally familiar with the sewage disposal •
facilities servicing the Stanford Alumni Property at Fallen
Leaf Lake. Said sewage facilities consist of collection
1 -
•
and authorities and the file of the action which contained
interrogatories propounded by the State, answers to inter-
- rogatories made by the plaintiff, and the declaration in
opposition to the motion filed by the plaintiff.
Upon review of plaintiff's contentions, the
• determination. is whether the trial court was justified in
granting the relief requested by. a motion on the state of
the record presented. It is axiomatic that where no
triable issues are presented and the sole question is one
of law, that question may appropriately be determined on a
motion for summary judgment. (Magna Development Co. v. Reed
• (1964) 228 Cal.App.2d 230.) I conclude the record contains
ample supporting documentation and data to meet the proce-
Ikly dural requirements of section 437c of the Code of Civil
Procedure and further, that the trial court was entitled to
rely upon facts admitted in the pleadings, interrogatories,
answers thereto, as well as the declarations filed by each
of the parties. Plaintiff contends that the affidavit of
Dubois wa:s totally insufficient and failed to provide any
1/ (Continued.)
dines of lift stations transporting the waste to central
locations., Said waste, however, is treated only through a
septic tank and is disposed of in leach fields and cess
pools and is not placed into transportation facilities •
sufficient to transport any resultant effluent outside the
Lake Tahoe Watershed. As such, said sewer system is not
the type of sewer system contemplated.under Water Code
Section 13951.
"I declare under penalty of perjury that the above is
true and correct."
2
•
evidentiary support for the summary judgment. A review
of the affidavit reveals to the contrary; it contains
correct statements of fact,and law. Plaintiff further
contends that because the Dubois affidavit did not incor-
porate by reference the interrogatories and answers, they
are not available to Court. I. consider such argument
•
to be speciously, if not frivolously, made. The law is to
the contrary. (Code Civ. Proc., S 437c; Budd v. Nixen
(1971) 6 Cal.3d 195, 201, fn: 4.) .
Plaintiff's second contention may be treated as
•
. a sufficiency attack upon the judgment. An important
purpose for the summary judgment statute is to protect
•
the rights of litigants in spurious or meritless complaints
and to expedite litigation by avoiding needless trials. •
(Baron v. Mare (1975) 47 Cal.App.3d 304, 307; Buffalo Arms,
Inc. v. Remler Co. (1960) 179 Cal.App.2d 700; Cone v.
Union Oil Co. (1954) 129 Ca1.App_Z 558.) Section 437c of
the Code of Civil Procedure provides in part, "Any party
may move for summary judgment . if it is contended that
the action has no merit or that there is no defense thereto.
. . . [1I] Such motion shall be granted if all the papers sub -
mitted show there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as
a matter of law. . . ." (Emphasis added.)
It must be acknowledged that the remedy of summary
judgment is a drastic procedure to be used sparingly and
3
the burden is on the moving party to establish that the
action is without merit. "(Wjhere there is no material
issue of fact to be tried and the sole question before
the trial court is one of law as to whether the claim of
the moving party is tenable on the undisputed facts, it
is the duty of the trial court on a motion for summary
judgment to hear and determine the issue of law." (Pittman
v. Pedro Petroleum Corp. (1974) 42 Cal.App.3d 859, 862.)
The trial court's sole determination on the motion for
'summary judgment against plaintiff's complaint and upon
the cross - complaint was whether or not the plaintiff had
- pleaded facts constituting a triable issue sufficient to
warrant an injunction to restrain the State from enforcing
the provisions of Water Code sections 13950 and 13951; and
whether the State has pleaded sufficient facts to warrant •
the issuance of an injunction against continued occupancy
or use of the plaintiff's properties until the properties
are brought into compliance with the provisions of
sections 13950 and 13951.
The proposition that justice is generally better
served when cases are heard on merits is a common
axiom. There are also instances when justice will be.
better served by a summary disposition, and this is such
a situation. Plaintiff's sole complaint against the State
was that it brought improper political pressure to bear
upon the district to implement the provisions of sections .
•
4 •
13950 and 13951. Such an allegation is irrelevant to
the issues involved. It has nothing to do with waste
removal and the public nuisance provisions of section
• 13951 and thus presents no triable factual issue. The
question is one of law. The allegations at best may
be considered an attack upon the constitutionality of the
two code sections. This court has previously-laid that
issue to rest (Fallen Leaf Protection Assn. v. State of
California (1975) 46 Cal.App.3d 816). The trial court did
not err in striking the complaint as•to the State in
granting the motion for summary judgment.
The State's cross - complaint alleged that plain-
tiff was acting in contravention of "section 13951.
Plaintiff admitted,'through answers to interrogatories,
that it was, in fact, in violation of section 13951. The
trial court did not err in granting the State's motion for
summary judgment on the cross - complaint. There was no
factual or legal issue to be tried. (Walsh v. Walsh
• (1941) 18 Ca1.2d 439, 442; Buffalo Arms, Inc. v. Remler
Co., supra, 179 Cal.App.2d at p. 703.)
Plaintiff's final contention is without substance
or merit.
• The motion for summary judgment was made and
granted on behalf of the State. The order of the trial
court dismissed plaintiff's complaint against the State.
thre
The judgment did not affect those parties not before the court.
5•
•
. Plaintiff, by its complaint and answers to the
ihr
cross - complaint, and its answers to interrogatories, has
failed to plead or assert any facts indicating a basis for
the cause of action against the State, particularly in
view of our prior decision in Fallen Leaf. Protection
Assn. v. State of California, supra, 46'Cal.App.3d 816. .
1 .7 I consider this proceeding to be an attempt to •
•
•circumvent by devious means a valid, existing, final,
prior judgment determinative of the rights of the parties
herein. The present action and this appeal are obviously
frivolous. Such groundless proceedings are an abuse of
judicial process and grossly unfair to other litigants
awaiting disposition of their appeals and trials. Actions
of this sort will not be tolerated. I would therefore
impose sanctions against plaintiff and plaintiff's counsel. - - -•
(Cal. Rules of Court, rule 26, subd. (a); Reber v. Beckloff
•
(1970) 6 Cal.App.3d 341, 343; Stafford. v. Russell (1954)
128 Cal.App.2d 794, 797.) .
EVANS - i J •
•
•
•
6