Judges Hint at Delay for Cityhood : Malibu: Remarks in appellate court indicate support for the county’s efforts to delay incorporation until next March.

Malibu cityhood advocates asked a state appellate court Wednesday to prevent Los Angeles County from further delaying the incorporation of the seaside community, but the three-judge panel did not give them any encouragement.

Although the judges of the 4th District Court of Appeal were not expected to rule on the matter for at least several days, their comments during a hearing in Los Angeles clearly indicated that they thought the county has the right to delay the incorporation until next March.

“It was not encouraging,” said Walt Keller, a member of Malibu’s future City Council, after the hourlong hearing.

The matter is of crucial importance to the county, which wants to start work on a controversial $43-million sewer system in Malibu before a new city government has the chance to block it. Voters overwhelmingly approved cityhood last month, and all five of the future council members have said they will oppose the sewer on the grounds that it would encourage excessive development.

Just last week, the California Coastal Commission dealt a severe blow to the county Board of Supervisors’ bid to speed construction of the sewer system. The state panel rejected the county’s request to start the work without having to wait for several intermediate approvals that ordinarily could be expected to take several more months.

Should the appellate court rule in the county’s favor, it would greatly improve the county’s chances of starting the work before Malibu becomes a city.

However, regardless of what the appellate court decides, the matter will almost certainly be appealed to the California Supreme Court.

A Los Angeles Superior Court judge in May struck down a bid by the county supervisors to delay incorporation until next March 28, ruling that the supervisors did not have the authority to impose that delay as a condition for allowing June’s cityhood election. The county appealed Judge John Zebrowksi’s decision, setting up Wednesday’s hearing.

At issue is whether state law gives the supervisors the authority to set the actual incorporation date when none is specified by the Local Agency Formation Commission, the state agency that oversees the transition of unincorporated communities to cityhood.

As part of LAFCO’s approval of the Malibu cityhood bid last year, the county is to retain jurisdiction over any sewer system for up to 10 years after Malibu incorporates.

State law allows LAFCO to delay an incorporation up to a year after the certification of votes. In approving Malibu’s election bid last year, LAFCO imposed no such condition. Lawyers for the supervisors argued that if LAFCO does not do so, state law gives the supervisors the right to delay cityhood.

Ordinarily, incorporation of a new city occurs once the election results have been certified and the results have been officially confirmed by the supervisors, a process that usually takes four to six weeks after an election.

But with the supervisors eager to move ahead with the sewer, and having authorized the election only after a judge ordered them to do so, the supervisors have clung to the part of the law that they say entitles them to impose the delay.

As with previous court hearings on the matter, much of Wednesday’s session was devoted to arcane arguments dealing with passages of the law that lawyers for both sides, and two of the judges, acknowledged as being ambiguous.

But remarks by at least two of the judges indicated that they tend to support the county’s argument.

“I don’t think the statute is nearly as vague as some of the argument I’ve heard would have us believe,” Judge George E. Danielson said.

“If LAFCO sets the date, that’s final. If the conducting authority (the county) sets the date, that’s final. If neither sets the date, then it’s the date under Subsection C,” he said, referring to the interpretation favored by the county.

Several remarks by presiding Judge Joan Dempsey Klein indicated that she may also favor the county’s position.

“From our removed view of this, it does not seem to be greatly significant that (the ability of Malibu to become a city) will significantly be diminished by a matter of a few months,” she said.

In her questioning of Elwood Lui, an attorney for the county, Klein observed the connection between the county’s appeal and its desire to go ahead with the sewer.

“(I take it) the county is fearful that once incorporation takes place, the new city officials will have a leg up in the interference of the (sewer) permit process,” she said.

Lui quickly responded, “That is it. You have hit it right on the head.”