Letter: Proper Rights

Letter to the Editor

Measure R would empower Malibu residents by requiring voter approval of certain large commercial projects. The opposition to Measure R — led by local developers — offers two somewhat contradictory arguments. 

On one hand, they argue undesirable projects are more likely to be approved if put to a popular vote. On the other hand, they argue fewer projects will be approved by the voters, leading to legal liability for the City. The developer’s first argument is inconsistent with the laws of probability. 

According to the law of large numbers, an anomalous result is far more likely in a small sample than in a large sample. Thus, you would expect greater accuracy from a poll with a sample of 1,000 people than a poll with a sample of only five people. More to the point, it is far more likely for three city council persons lose their heads and approve, say, the construction of a new Walmart in Malibu than for thousands of Malibu voters to do the same. 

As to the claim of future legal liability, the opposition fails to identify the legal basis for any such lawsuits. Presumably, they are referring to lawsuits for inverse condemnation, under which the developers would have to prove that the denial of their projects by popular vote constitutes a “taking.” But Measure R does not apply to projects under 20,000 square feet, so the developers will never be able to prove that Measure R deprived their land of all beneficial use, and, according to the U.S. Supreme Court, “mere diminution in the value of property, however serious, is insufficient to demonstrate a taking.” 

Furthermore, Measure R requires a popular vote only for those large commercial projects that require a variance or other discretionary city approval. As stated by the U.S. Supreme Court, a property interest must exist before it may be “taken.” A developer whose project requires a variance has no vested right in such project, and therefore, is not being deprived of any property right by an unfavorable popular vote under Measure R. 

Vote “yes” on Measure R. 

Ken Miller