Putting the Sue in SewerWatch -- Litigation could make agencies responsible for the train wreck in Los Osos pay their fair share of sewer cost

I realize that this probably isn't the most novel approach to tackle a problem in Los Osos, but I think I may have come up with a way to cut the cost of your sewer system in half, at least -- SUE! Sue hard, and sue fast any government agency that has even had a sniff of the project over the past eight years.

Sue the California Coastal Commission.

Sue the Regional Water Quality Control Board.

Sue the State Water Resources Control Board.

Sue the county of San Luis Obispo.

Cite something like incompetence, and sue them for a lot of money. Somewhere in the neighborhood of $100 million sounds about right.

Why that figure?

Because the awful decision-making of every agency I just mentioned has led directly to the eight year-and-counting delay in constructing a sewer system in Los Osos, and allowed the cost of the project to skyrocket from around $80 million in 1998 to nearly $200 million today.

That means that the eight year-and-counting delay caused by the terrible decision making of the above-mentioned agencies will end up costing Los Osos taxpayers somewhere in the area of $100 million, at least.

Those agencies should have to pick up that tab.

For all but San Luis Obispo County, the cases are tight.

Take the case of the Coastal Commission, for example. What they did throughout 1998 started the sewer train wreck, which means they are arguably solely responsible for the mess. Their decision-making at several public meetings that year was flat-out awful.

Over and over again they delayed issuing the county a development permit so the county could proceed on their sewer project, and the reasons the Commission gave on why they delayed issuing the county its permit for nearly a year, don't hold a drop of water. And that's where you have them, Los Osos.

Why the delays in 1998?

Throughout that year, the Commission was hit with a barrage of highly orchestrated public relations efforts, spearheaded by Los Osos marketing professional, Pandora Nash-Karner. In addition to her aggressive marketing campaign, Nash-Karner, as many know, was also part of a small citizen's group, the Solution Group, that was proposing an alternative sewer project than what the county was proposing at the time.

Boy, that barrage must have had a profound effect on the Commissioners, because, in hindsight, they delayed issuing the county its permit for almost a year for absolutely no reason whatsoever. Completely baseless.

During that year, Nash-Karner would attend every Coastal Commission meeting on the matter in an over-the-top effort to get the Solution Group's plan through the process. As part of her marketing blitz, she organized dozens of vocal supporters to appear at the meetings, all armed with colorful signs that read things like: "Better, Cheaper, Faster," and "Do-doing it Right." (In all honesty, I was very fond of almost every one of those supporters. Very nice people. And since I'm a fan of activism, I applaud what they did. Where they steered wrong was when they bought into Nash-Karner's marketing campaign, along with the rest of the 87-percent of Los Osos voters.).

However, despite the Solution Group's folksy, nicey-nice, underdog image that Nash-Karner skillfully painted with her marketing skills at every public opportunity, the staff of the Coastal Commission wasn't buying it.

Repeatedly in 1998, their keen staff recommended that the Commissioners not consider the Solution Group's plan, and issue the county its development permit.

Unfortunately, the Commissioners didn't listen to their brilliant staff, and allowed the Solution Group to delay the county's project for almost all of 1998, culminating in November, when the election to form a CSD and strip away the county's authority on wastewater issues in Los Osos overwhelmingly passed due to the promise of "better, cheaper, faster." The Solution Group was off and running.

What happened there is so interesting. Think about it for a minute. The Coastal Commission staff told the Commissioners, "Pursuit of the Solution Group alternative also has the potential to result in significant delays to the implementation of a wastewater treatment project for the Los Osos area."

The Commissioners ignored their staff, and their staff would prove to be 100-percent accurate two years later. Amazing.

In an earlier post, I wrote:

The Coastal Commission, it appears, knew all along that the Community Plan was dead on arrival. Several sources were confirming this in 1998, including the Coastal Commission's own staff and the Questa Study that eventually showed that the County's project was superior on every point in the study. Yet the 1998 Commission chose to ignore all those competent, credible professionals, and in essence, made this decision:

"Ah, what the hell? Despite what all these credible agencies, with credible, competent staffs are so convincingly telling us, we're going to ignore them and give these lovable lugs, these feisty underdogs from Los Osos, led by the Solution Group, a shot at local control, and just to make sure that we get you get started off on the right foot -- right out of the gate -- we're also going to make sure that you are saddled with a massive public works project that we already know isn't going to work."

That is exactly right (exactly right), and that's where you have them. That decision, and the decisions that led up to that faithful day, were atrocious.

Commission staffer Steve Monowitz would later tell me, "Let the record reflect,that was against staff's recommendation."

Interestingly, a citizens' group in Los Osos known as the South Bay Property Owners Association, sued the Coastal Commission in 1998 to get them to issue the county its development permit, arguing the delays granted to the Solution Group by the Commission were baseless. That lawsuit failed. Looking back, it was 100-percent right.

The train wreck is largely the fault of the 1998 Coastal Commission. Sue them.

Then there's the case of the Regional Water Quality Control Board. Los Osos, sue the hell out of them.

Why?

Faced with a gigantic pile of evidence that the Solution Group's project simply wasn't going to work in Los Osos, the staff of the RWQCB, led by Roger Briggs -- the only person with the authority to pursue enforcement action against the fledgling, yet failing, CSD -- allowed the district to pursue the Solution Group's plan for nearly two years, from early 1999 to mid-2000.

Think about what transpired there carefully. It's mind boggling:

Briggs and his staff knew -- through a gigantic pile of evidence -- that the Solution Group's project wasn't going to work, yet they still allowed them to chase it for nearly two years before it finally crumbled to pieces from the exact same reasons found in that gigantic pile of evidence... two years earlier.

That makes zero sense, and it's one of the most stupid episodes in this saga, and that's saying something.

During a public meeting in 2005, Briggs said he was just trying to be "nice" when asked why he didn't begin enforcement action against the early CSD.

Again, Los Osos, you have them. That two-year delay caused by Briggs' "nice," yet nonsensical and awful decision-making was absolutely disastrous, for many, many reasons.

They had a huge hand in the train wreck. Sue them.

Then there's the very interesting case of the State Water Resources Control Board.

Their awful decision-making in this story is almost imperceptible -- you have to look really close to see it -- but one tiny decision by them in 2004 would end up having a big, and costly impact on the train wreck.

It's complex, and very subtle, but it's there. Los Osos, you have the SWRCB, too.

The case against them goes like this: When the Coastal Commission finally approved the mess known as the Tri-W development permit in 2004, the SWRCB staff immediately did something really stupid.

They agreed to loan money to the District to fund the multi-million dollar park amenities in the project. Without that funding, there would have been no cash around to pay for those amenities, and, as we all know now, no park amenities, no Tri-W.

What makes that decision by the SWRCB staff so stupid is that the very policy that guides where that money should be spent explicitly and brilliantly states:

"Ineligible. Decorative items."

Yet, against their own brilliant policy, the staff of the SWRCB decided to fund the "decorative" park items found in the Tri-W project.

Last year, SWRCB staff told me that they decided to fund the amenities because they considered them "mitigation" since they were part of the conditions of approval for the Tri-W development permit.

However, what they didn't know at the time is that the only reason the amenities ended up as a condition of approval, is because the LOCSD played "bait and switchy" with the California Coastal Commission when, after they locked in Tri-W in 2002 with a non-existent "community value," they removed the amenities from the project almost entirely because they did not have the funds to pay for them.

Fast-forward to 2004 and the Commission reasoned, logically, that the only reason they allowed the zoning change in 2002 was to accommodate the "strongly held community value" for a sewer-park in the middle of town, so, in an effort to ensure that there was at least one reason why an expensive sewer plant was about to be built in the middle of a beautiful central coast town, the Commission told the District they couldn't move forward with the Tri-W project without the amenities in the plan, but not before Commissioner Potter blasted them as, "bait-and-switchy."

Right there, the District could have, and should have, moved the project.

Would they have been fined by the RWQCB for doing that, and highly embarrassed? You bet.

Instead, the Directors unanimously voted to "reincorporate" the multi-million dollars worth of park amenities into the project.

Not only was the SWRCB staff unaware of the "bait and switch" move the CSD played on the Commission, they were also unaware that the documents associated with the zoning change in 2002 clearly state that extensive environmental mitigation would be required because of the inclusion of the amenities.

If you follow their logic, the SWRCB staff's decision to fund the decorative items found in the Tri-W project, was a decision to fund mitigation that required massive mitigation. Let me repeat that: They were funding mitigation that required mitigation. And it's my guess that's a big no-no in public works' circles, especially if that circle's policy says, "Ineligible: Decorative items."

Like I said, you have to look very closely, but it's there. Los Osos, you have the SWRCB on that. The decision to fund the park amenities was a careless, lazy and potentially illegal decision, and has now delayed the project for nearly three years-and-counting.

The SWRCB has had a huge hand in the train wreck. Sue them.

Then there's the second case against the Coastal Commission. Unfortunately, this case doesn't bode well for one of the characters I hold the most respect for in the whole Los Osos sewer story -- Coastal Commission staff member, Steve Monowitz.

In 2002, when the CSD was attempting to get the zoning changed to allow a sewer plant at the Tri-W site (a lengthy process), Monowitz failed to completely research the rationale for the zoning change request.

Instead of relying on official documents and things like election results, for example, Monowitz relied on the word of CSD Directors, primarily Pandora Nash-Karner, as the sole source of a so-called "strongly held community value" in Los Osos that any sewer plant must also double as a centrally located community park. Tri-W was the only centrally located site under consideration, therefore it was the only site that would satisfy that "community value." That's why the CSD was asking the Commission to change the zoning on Tri-W in 2001-02... the "community value." (Are we clear on that? It's very important.)

Had Monowitz not relied solely on CSD Directors as the source of that "community value" and had researched it further, he would have discovered that the "strongly held community value" never existed. Not only is there no evidence at all to support that extraordinary claim, there's all kinds of evidence to support the claim that it never existed, including a lethal combination of election results, public opinion surveys, and a very suspicious document -- the 1995 Los Osos Vision Statement -- that included this line:

"Our waste water treatment facility(s) is based on a natural biological process rather than
mechanical system approach to the highest extent possible. These facilities have become a visual and recreational asset to the community...

That line in bold is no longer in the Vision Statement. County planner, Mike Wulkan, recently told me, "It didn't make it to the next stage of the planning process." Monowitz told me he was unaware that the line had been removed from the document when I spoke with him a few months back.

Additionally, the unscientific polling that served as the basis of the Vision Statement does not substantiate that line at all. That line -- "These facilities have become a visual and recreational asset to the community" -- seemingly came out of nowhere, and was in the Vision Statement just long enough to get it into the Final Project Report, and once there, it would prove to be the only thing that locked in Tri-W for the early CSD's second project.

Without that "community value," as many know now, the zoning would not have been changed on the Tri-W site in 2002, as sites out of town were shown to be "environmentally preferred" because they were already environmentally degraded due to decades of agricultural use, unlike Tri-W.

Former CSD Director and Solution Group member, Pandora Nash-Karner, was one of eight people with their name attached to the Vision Statement, along with her husband, Solution Group founder, Gary Karner.

That "community value" simply did not exist in 2002, and Monowitz should have caught that, and if he had done the proper research (fairly easy research, I must add), he would have caught it, the Local Coastal Plan would not have been amended in 2002, and Tri-W would have been bounced out of the running right then and there. State law would have demanded it.

Monowitz recently told me, "It was inappropriate of me to rely on Solution Group members to determine community values in Los Osos."

I think Steve Monowitz is one of the more brilliant people in the entire train wreck (certainly one of the hardest working), but that was a huge f-up.

In his defense, however, he really didn't have any reason to think the LOCSD Directors would lie to him about a manufactured "community value" for the sole purpose of making damn sure that the location of their second treatment facility, was the exact same location as their first treatment facility -- the facility that got them elected and the CSD formed in the first place in 1998, and a facility that required exactly ten times more land than their second project.

But that doesn't let him off the hook. "Why would a community want a tot lot in their sewer plant?" is not a difficult question to conceive, and then find a legitimate answer to.

And so, Los Osos, you have the Coastal Commission again. If they would have caught the fact that that "strongly held community value" did not exist in 2002 -- and they should have, and easily could have -- the past five years would have played out entirely different in Los Osos.

My recommendation? You guessed it. SUE!... for a lot of money.

As for the County, the case against them isn't as strong as those above.

A county staffer once told me that after the 1998 election that formed the CSD with a whopping 87-percent of the vote, they just "washed their hands" of the entire Los Osos sewer situation, and conducted almost no oversight at all.

"Hey, 87-percent of the town wants to pursue the Solution Group's plan. Who are we to say no," is apparently how their reasoning went.

That's actually not a bad take. Fair enough.

But what it fails to take into consideration is that the county was privy to the same gigantic pile of evidence that Briggs had on his desk -- the evidence that showed the Solution Group's plan wasn't going to work -- and yet the county just "washed their hands" of the situation. That is extremely careless policy. They knew it wasn't going to work, and they didn't do a thing either.

What the heck, huh? Sue them too.

[Good Lord. Now that I think about it, just how many agencies did Nash-Karner's marketing blind? The 1998 Coastal Commission had all the evidence that showed that the Solution Group's plan wasn't going to work, and they allowed them to pursue it anyway. In 1999, the County had all the evidence that showed that the Solution Group's plan wasn't going to work, and they allowed them to pursue it anyway. And from 1999 - 2000, the Regional Water Quality Control Board had all the evidence that showed that the Solution Group's plan wasn't going to work, and they allowed them to pursue it anyway. What in the hell happened?]

Look, I'm a decent person, and since I know how beloved SewerWatch is throughout Los Osos, I'm willing to help and do my part to keep the cost of the sewer down for everybody.

Here's my proposal: If there's an attorney out there that wants to go Ed Masry, and work pro pono on this until all that fat cash comes rolling in, I'll do the same for said attorney. Think of me as your very own Erin Brockovich. We could do some sort of class action thing, after we argue our way around the statute of limitations issues, of course. It'll make you famous.

The beautiful part about my "Sue, Sue, Sue, Sue, Sue" idea is, if it's successful (and I don't see why it wouldn't be), Los Osos taxpayers would be locked in at around $80 million for the project no matter how long it takes to complete, or how much it ends up costing. $300 million? Whatever. Sue them for $220 million, plus, of course, a handsome attorney fee.

Anything over the 1998 price tag of $80 million, those agencies should pick up. After all, they're the ones most directly responsible for the eight year-and-counting delay. That's why they exist in the first place, isn't it? To make sure that things like Los Osos don't happen. Well, Los Osos happened. Are we supposed to believe that all the agencies responsible for the oversight had nothing to do with it? That's absurd, as I've shown.

Too bad you can't sue the Trib, as well. They're as culpable as anyone for this mess.

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