Judge Hands Down Sentences, Sympathy : Court: Jurist calls Topanga couple honest idealists in their long, bitter fight with county building department.

At one point, he compared them to a drunk who walks into the same tree so many times he thinks he’s in a forest.

But, in the end, a judge showered sympathy on a Topanga couple convicted last month of a total of 16 criminal charges of building a house without a permit, suspending sentence on all but four of the charges.

The sentencing last week climaxed a four-year battle between the couple--Arthur Starz and Kathleen Kenny--and the Los Angeles County Department of Building and Safety, in which the couple alleged that they were prosecuted only because they resisted attempts by building inspectors to extort bribes in return for a permit to replace a house on a lot they own in Topanga.

Although he had earlier indicated he might throw the book at them if they did not plead guilty and avoid a lengthy trial, Malibu Superior Court Judge James A. Albracht struck a conciliatory note as the curtain came down--openly sympathizing with the people he was sentencing and lashing out at the building department.

“Heaven forbid the Building and Safety Department should descend and inspect my house, your house, or anybody’s house,” Albracht said, criticizing the system for giving inspectors too much discretionary power.

Albracht brusquely rejected the prosecutor’s insistence that he send one of the defendants to jail for the misdemeanor offenses, saying he considered the couple honest idealists who “didn’t want to do the dancing you have to do to cooperate with Building and Safety.”

Charges were brought against Kenny and Starz, who live in a 600-square-foot house they built on one of their three lots in the Fernwood area, after they published several issues of a newsletter that sharply criticized officials’ handling of their application for a permit to build a second house.

With hostility already aroused by the quarrel over the second house, building officials then accused them of constructing a third house without permits.

The couple said they merely refurbished an old house on the lot, after obtaining oral permission from county officials under the “continuing maintenance” rule of the Building and Safety Code, and were then prosecuted because they refused to pay bribes.

During a hearing in February, Kenny and Starz both testified and their attorney, James Fosbinder, called several county employees as witnesses in an attempt to show they were victims of an extortion attempt.

Albracht, however, cut the testimony short after more than a week, saying he thought the couple had brought their problems upon themselves by incessantly writing letters and putting themselves in the spotlight.

“I think that if she in fact received some selective treatment, it was because she made herself conspicuous,” Albracht said. “I think Ms. Kenny has evidenced, in this proceeding at least, a paranoia with regard to this. In my opinion, it is a self-fulfilling prophesy.”

Albracht tried unsuccessfully to persuade Kenny and Starz to plead guilty, promising not to send them to jail or fine them more than $5,000. The deal would be off, he sternly warned, if they went on with the trial.

Refusing the offer, Kenny and Starz testified in their trial last month that they spent a year trying to get a permit for the house, paying $8,000 in application fees, only to be blocked by county officials.

A jury convicted Kenny on two counts and Starz on 14 counts after deliberating four days.

At their sentencing Wednesday, Albracht reasserted his conviction that there was no plot against them, but rebuked Deputy Dist. Atty. Joan Clay Manley’s argument that they should be punished severely for defying the system.

“Seldom have there been people in my court who, in the face of many, many adverse rulings, have accepted them with (such) enormous courtesy,” Albracht said.

When Manley persisted in asking him to send Starz to jail for 90 days and impose the maximum fines against both, Albracht retorted that he would have been happy if the jury had acquitted them, in spite of what he said was their obvious guilt.

“My assessment as I observed this case go to the jury was the only chance the defendants had of prevailing was some sort of jury nullification, that the jury would fly in the face of the law,” Albracht said.

“My visceral response was it wouldn’t have mattered to me if they did, and I would have liked to have seen Mr. Starz and Miss Kenny prevail on that in some way, because they seem like very decent people.”

In a lengthy monologue, Albracht said he sympathized with anyone trying to work with regulators who have so much discretion.

“You have a real problem when you have a regulatory system with criminal penalties wherein truly total discretion is in the hands of the regulators. There is obviously the potential for the misuse of that, and you don’t have any kind of bright line for people who want to follow it. . . .

“Particularly in Topanga, where a hundred percent of the houses are out of code, it’s hard to say this is the code people should follow when nobody follows it, and things are bootlegged in everywhere you look.”

Nonetheless, Albracht said he would not shrink from punishing the couple. He ordered Starz and Kenny to pay fines of $2,500 plus penalty assessments.

He also put Kenny and Starz on probation with a condition that they obtain a building permit for the house within one year. If they fail, he said, he may decide to order the house torn down.

Kenny said she was relieved by the outcome, but was still concerned that county officials will continue to withhold the permit.

The conclusion of the criminal trial does not end the legal saga of the small house on Cave Lane.

A California Coastal Commission lawsuit alleging that Kenny and Starz built it in the coastal zone without a permit from the commission is scheduled to go to trial Aug. 22.

Starz and Kenny also have filed a federal racketeering and due-process lawsuit against Los Angeles County. After dismissing the racketeering portion of that case, the original judge took himself off the case. A hearing on the couple’s amended complaint is expected to be heard by a new judge in August.