Malibu Council to Appeal Order for Impact Report

The attorney for the Malibu Township Council plans to appeal a recent decision by a Superior Court judge ordering cityhood backers to prepare a limited environmental impact report on how incorporation would affect the coastal community.

The decision to appeal coincides with the appointment Wednesday by the Local Agency Formation Commission of an independent counsel to handle Malibu cityhood matters. LAFCO commissioners appointed Riverside attorney Clark Alsop to represent the state panel.

Commissioners are scheduled to meet Friday with Alsop to determine if they should join in the appeal or comply on the environmental report. Several commissioners expressed concern that if LAFCO lost the appeal, it might set a precedent for local agency formation commissions throughout California. The commissions handle incorporation matters for counties throughout the state.

Cityhood backers are hoping to reverse the ruling of Los Angeles Superior Court Judge Miriam Vogel last month, ordering incorporation proponents to prepare a report on potential sewage and traffic enforcement problems created by a new city. Her decision was a major setback for cityhood advocates, who had hoped to get on the March ballot. The earliest date that the issue could be put before voters now is June.

Vogel’s ruling was prompted by a lawsuit filed by Malibu landowner Chris Kolodziejski challenging LAFCO’s approval in August of the cityhood petition. Kolodziejski’s suit charged that LAFCO’s failure to do a full environmental impact report was a violation of the state Environmental Quality Act.

Larry Wan, Malibu Township Council president, said the council had been waiting to file an appeal until LAFCO appointed an independent counsel so that attorneys for the council and LAFCO could take the action together. John B. Murdoch, the attorney for the civic group representing more than 1,000 families in Malibu, said next week is the earliest an appeal could be filed.

Until now, LAFCO has been represented by Deputy County Counsel Bill Pellman, who also represents the County Board of Supervisors and has advised them on Malibu sewer issues. A majority of county supervisors want to approve a sewer plan for Malibu before residents are given a chance to vote on cityhood.

Pellman’s potential conflict of interest was raised by Murdoch in June, but LAFCO commissioners said then that there did not appear to be any potential conflict. However, after LAFCO was hit with the lawsuit, agency officials suggested it might be proper to bring in a new legal adviser.

“Since one of the issues is the county’s interest in sewers and Bill Pellman is representing the county on that, it’s my feeling that it isn’t fair to LAFCO or to Bill Pellman to have to represent both sides on this,” said Ruth Benell, LAFCO’s executive director.

Murdoch warned commissioners Wednesday that if LAFCO chose not to join in the appeal it might pave the way for similar lawsuits from disgruntled landowners in communities wanting to incorporate.

“We feel that the decision by Judge Vogel has a number of problems that will haunt you for years,” he said.

Interviewing Consultants

The Malibu Committee for Incorporation decided not to appeal Vogel’s decision, fearing that it might delay a cityhood election even longer than the preparation of the environmental impact report.

Committee members are currently interviewing consultants to do the environmental study and expect to pick one by Jan. 11. Walt Keller, co-chairman of the incorporation committee, said he hoped that they could pursue a “parallel course” where the appeal could go forward while a consultant prepares the report.

Benell said that she has been advised that it could take up to two years before an appeals court rules in the case. “My recommendation is to comply with the judge’s order because it would be more expeditious and more economical,” she said.

The price for a consultant to prepare an EIR ranges between $18,000 and $32,000, according to Keller. Benell said LAFCO’s new counsel would be paid between $105 and $185 per hour.

Murdoch contends that no EIR is required for approval of the cityhood petition because it would only result in a governmental change. The Environmental Quality Act requires an EIR only when a project proposes changes in “physical conditions.”

“The courts requirement of an EIR is not only contrary to the statute but is superfluous, expensive and counter-productive,” Wan said in a letter to LAFCO commissioners. “It would be a terrible precedent to require an EIR for any change of government, because then it could be stretched to include just about any election.”