Lawyer Told to Amend Suit Over Conservation Law

A Ventura Superior Court judge Thursday gave an attorney 30 days to amend for a second time a lawsuit challenging Ventura’s stringent water conservation ordinance.

“In the suit, we allege that the ordinance is arbitrary and capricious, and the judge asked us to be more specific,” said Ventura attorney Lindsay F. Nielson, who filed the suit in May.

Judge Melinda K. Johnson’s decision extends the first legal challenge to a water-conservation ordinance in California since a statewide drought began four years ago.

The suit alleges that the ordinance--which sets penalties for families and businesses that use too much water--violates residents’ constitutional rights to equal protection because a family of four is allowed the same amount as a person living alone.

Johnson threw out a second contention in the lawsuit--that the city should have done an environmental impact report before adopting the ordinance.

The judge said the 35-day statute of limitations for requesting the environmental report had expired when Nielson filed the first amended version of his complaint in June.

Johnson also ruled Thursday that the suit was flawed because Nielson did not specify in which capacity he had signed the complaint--as a plaintiff or as an attorney representing a plaintiff. But she gave Nielson 30 days to clear up this technicality.

“We’re still alive,” Nielson said of the judge’s ruling. “The city has a lot of defenses going for it. If we can get to the merits of this case, that’s what I’m interested in, but there are a lot of minefields ahead of us.”

Nielson said he would review recent case law before deciding whether to go forward with the suit or possibly appeal the judge’s decision on the environmental report.

Attorney Michael R. Dougherty, who represented the city, said he hoped that Johnson’s ruling would discourage Nielson. “He seems to be losing enthusiasm, but only time will tell,” Dougherty said.

The lawsuit had come close to being thrown out of court in June, when Johnson ruled that it was seriously flawed.

The most obvious problem at the time was that Nielson had taken issue with the wrong ordinance: In three separate documents, it mentioned a 1989 water waste ordinance instead of the 1990 mandatory water-rationing ordinance that the suit intended to target.

Johnson also ruled in June that Nielson’s suit was flawed because Nielson had not signed it.

But the judge gave Nielson 30 days to fix his complaint.

Nielson had called those mistakes “typing errors” and said he was sure that he could bring back a complaint that would stand up in court.

But when Nielson refiled his suit last month, the city challenged it again.

“Who knows?” Dougherty said. “If Nielson decides to go forward with the lawsuit, we might” challenge its technical merits again.