Morshead v. California Regional Water Quality Control Bd.
| Decision Date | 21 January 1975 |
| Citation | 119 Cal.Rptr. 586,45 Cal.App.3d 442 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Jeffory MORSHEAD et al., Plaintiffs, and Appellants, v. CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, Defendant and Respondent. Civ. 34151. |
Saul M. Weingarten, Seaside, for plaintiffs and appellants.
Evelle J. Younger, Atty. Gen. of Cal., Carl Boronkay, Asst. Atty. Gen., Roderick Walston, Deputy Atty. Gen., San Francisco, for defendant and respondent.
Plaintiffs identify themselves as taxpayers, property owners, developers and associations of builders. They appeal a superior court judgment 1 denying their petitions for writs of mandamus. By such petitions, they sought to restrain the enforcement of certain cease and desist orders issued by the California Regional Water Quality Control Board for the San Francisco Bay Region (hereinafter referred to as the 'Regional Board.')
Pursuant to section 13263 of the Water Code, the Regional Board adopted water quality requirements for waste discharges which are pumped indirectly into the waters of the San Francisco Bay. 2 These waste discharges are directed into the bay by district or municipal discharges who operate sewage treatment plants. After the Regional Board's water quality requirements were violated, the Regional Board, pursuant to section 13301 of the Water Code, issued separate cease and desist orders applicable to the Richardson Bay Sanitary District (order 71--33), the Mill Valley District (order 71--34) and Sanitary District No. 1, which operates a sewage treatment plant in Marin County (order 71--52). Each of these orders requires the dischargers, pursuant to prescribed time schedules set forth therein, to refrain from further violating the Regional Board's requirements and particularly to refrain from continuing to allow untreated sewage to be discharged into Richardson Bay and Corte Madera Creek. The orders also prohibit those districts from authorizing any further connections to their sewage treatment facilities, except as may be permitted by the Regional Board on the basis of corrective measures taken by the districts to reduce the overloading of their facilities.
The impact of the above orders is clear. Plaintiffs were prohibited from using their property in a manner which would require a sewer connection until the districts could meet the Regional Board's water quality requirements. The plaintiffs conceived these prohibitions as establishing a 'building ban.'
After the above orders were issued, the plaintiffs filed separate cases in the Marin County Superior Court seeking writs of mandamus to prevent their enforcement.
Upon the motion of defendant, and under the authority of section 13361, subdivision (b), of the Water Code, these separate cases were transferred to superior court in San Francisco. The cases were consolidated for trial and, following a hearing, the court denied the plaintiffs' petitions. Judgment was entered in favor of the defendant on September 5, 1973. From this judgment, plaintiffs appeal.
Plaintiffs contend that they were denied procedural due process by the Regional Board in that:
(a) they were not given proper notice of the hearing before the Regional Board, at which time the propriety of whether or not the cease and desist orders would issue was determined;
(b) they were not allowed to cross-examine and refute the Regional Board's evidence; and
(c) they were not allowed to present evidence as to how the proposed orders would act to create a situation of hardship for them.
Plaintiffs also contend that the Regional Board's issuance of the cease and desist orders actually amounts to inverse condemnation, for which compensation should be paid.
The trial court rejected plaintiffs' contention that they were not given proper notice of the Regional Board's hearing on the basis of its finding that the board provided due notice of the hearings on the cease and desist orders, either by publication or direct notification, to all persons affected by said orders.
It appears that the plaintiffs' contention is based upon the fact that a particular interest group, 'The Citizens' Assistance League to Marin Sanitary Districts,' was not given an individually mailed notice of the Regional Board's hearings.
We find no error in the trial court's determination. Defendant's Exhibit C provided substantial evidence for the trial court's decision that proper notice of the administrative hearings in question was provided the plaintiffs. A general notice of the board's hearing was published in a local newspaper, giving all those interested an opportunity to be heard. In addition, notices were sent to all individuals and agencies which had contacted the Regional Board indicating an interest in the hearings. Notices were also sent by certified mail to each of the dischargers, to the Marin Builders' Exchange, and to legal counsel for the California Builders Council. We conclude that the trial court was correct in ruling that there was proper notice given to the plaintiffs even though a particular unknown group was not given individual mailed notice.
In further support of their procedural due process challenge, the plaintiffs contend that they were denied an opportunity to present their own evidence or cross-examine and refute evidence presented in support of the Regional Board's eventual determination. Such contention is without merit.
The record of proceedings had before the hearing panel of the Regional Board shows that, at the outset, the chairman advised all present that all relevant evidence which any person wished to have the panel consider had to be introduced at that hearing; further, that the panel would accept any evidence or testimony which was reasonably relevant to the issues. Finally, the chairman cautioned all present that no evidence could be introduced into the record at the meeting of the full Regional Board absent a satisfactory showing that such evidence could not reasonably have been produced at the panel hearing.
The trial court found that, at hearings before panels of the Regional Board which led to the issuance of the orders in question, all affected persons were given an opportunity to testify and present evidence. This finding is fully supported by the record in this case.
Further, defendant's Exhibit E--5 is replete with examples of plaintiffs' counsel being given every opportunity to cross-examine witnesses and Regional Board members. The record indicates that he availed himself of these opportunities.
Plaintiffs contend that they were denied the opportunity to submit evidence at the Regional Board hearing as to the hardship they would suffer as a result of the issuance of the cease and desist orders in question. They argue that they were in some way denied such an opportunity after they were told by the special hearing panel of the Regional Board that they could present this evidence.
On this point the trial court found that, notwithstanding the Regional Board's announced policy of excluding evidence of personal hardship at hearings before the panel, no such evidence was excluded in this instance and that, in fact, some evidence of hardship was admitted. The trial court concluded that it is not statutorily or constitutionally improper for the Regional Board to exclude evidence of personal hardship at hearings conducted by the panel or by the full Regional Board for the purpose of determining whether to issue a cease and desist order.
Here again, the record does not support plaintiffs' contention but does amply support the trial court's finding. It appears that the panel did not state that the plaintiffs could present specific evidence of hardship but rather pointed out that hardship was considered by the Regional Board in making its final determination.
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