The voter-approval provision, the central enforcement mechanism in Measure R, impermissibly delegates adjudicatory authority to the voters. This flaw will eventually be fatal to the law, regardless of the severability clause. Voters can always be delegated legislative authority, which they exercise every time they cast votes on a referendum, because our local or state legislators can always delegate back to the people that which the people originally delegated to them.
But local government also performs quasi-judicial functions whenever a member of the public appeals an administrative decision, whether it be the approval or denial of a permit or the calculation of an assessment. Like a jury or a judge, one makes an adjudicatory decision by finding facts and applying them to the law, regardless of one’s personal preferences. If future property owners’ applications are to be subject to the personal preference of the voters, an offense to due process can easily be found. Voters are permitted to decide what the law should be, not whether a developer’s application complies with it.
Others have pointed to a second flaw that hints at an equal protection challenge, in that Measure R applies its strictures to only new development. But these ends and means are perfectly appropriate as this kind of disparate impact is seen every time land use laws changes, and newly non-conforming uses are grandfathered in. Applying Measure R’s standards to existing tenants would impermissibly interfere with private contracts, but the initiative errs in permanently exempting existing shopping centers. This flaw, unlike the first, may be curable through amendment.
As to the chain store issue, these establishments draw our ire because they drive out local business, not because residents and visitors don’t patronize them. In a consumption-based economy, commercial landlords prefer a tenant with a “brand” and an advertising budget to mom and pop shops.
These are things most residents would be willing to go into town to purchase, and few visitors would travel here to buy. If any one thinks we should make Malibu a regional destination for shopping, they would garner little, if any, support.
Brad Field