Everyone can agree — we all want Malibu to retain its rural charm and allow only responsible growth.
Malibu recently passed its own legislation restricting the size and amount of chain stores. It is more restrictive than what Measure R proposes and may potentially result in fewer chain stores in the Civic Center and fewer costly legal challenges. Measure R may drain city reserves and result in less money available for other purposes.
The Malibu Association of Realtors (MAR) requested a legal analysis of Measure R from a law firm that specializes in land use — a service provided by the National Association of Realtors — and also studied reports by Malibu City Attorney, the City Manager and Planning Director. These are the areas the law firm suggests may present potentially costly legal challenges:
– Administrative decisions should not be made by voter approval, as Measure R proposes.
– Measure R could result in excessive delays in project approvals, which could amount to an unconstitutional (or regulatory) “taking.” This is a direct attack on private property rights.
– The Measure R proposed definition of “formula retail” is overly broad and arbitrary.
– The initiative may also face legal challenge under the “Dormant Commerce Clause” of the U.S. Constitution.
– Recitals that mislead voters may legally disqualify the initiative.
– The initiative will result in “arbitrary decision making” by voters (projects over 20,000 sq. ft.).
– Several sections of the initiative contain “arbitrary standards” that may invite legal challenge, including:
– Definition of formula retail (No factual basis for having established the criteria.)
– Floor area exemptions (Why are units between 1,400’ and 5,000’ exempt from Conditional Use Permits in Measure R?)
– 30% cap on formula retail in a shopping center
– Exempt uses
– Initiative is not consistent with several aspects of the City’s General Plan and LCP.
The mission of the MAR is to act as an advocate for the profession, and to educate, inform, and serve its members and the public. Please study the City Attorney’s report and the ballot arguments in the voter guide.
MAR Task Force on Formula Retail Ordinance(s)