The year is 2020. Instead of four Starbucks, Malibu has eight. Instead of two Subways, there are four and a Quiznos. Jack in the Box, Kentucky Fried Chicken, McDonalds and Chipotle are joined by Arby’s, Burger King and Carl’s Jr. Sephora and the two Ralph Lauren stores are in the same shopping center as the Gap and Abercrombie and Fitch, which is located next to Hollister and Forever 21. Coogie’s is replaced with an Applebee’s and Lilly’s Café has been replaced by La Salsa. Sunlife is now Jamba Juice.
In 2005, the Malibu City Council voted to have staff engage a consultant to develop the Economic Element of the Malibu General Plan and consider whether a formula business ordinance was wanted/needed. After eight years and numerous additional community meetings, the City Council is now considering the ordinance.
The Formula Business Ordinance currently being considered is simple and does not ban any business.
According to the city’s website:
“The proposed ordinance would require a conditional use permit (CUP) pursuant to M.M.C. Chapter 17.66 for all new formula retail establishments located within the district [Civic Center] and for existing formula retail establishments located within the district that relocate to a new tenant space, expand by 200 square feet or more of gross floor area, or increase service area by 50 square feet or more. The proposed ordinance would not apply to existing formula retail uses that change ownership, exclusively, or existing and new formula retail uses considered grocery, gas stations, or banks and financial services.” [To read the rest of the ordinance, visit malibucity.org.] Being unique is not a new concept in Malibu. Salvation is an example of businesses that has adapted to this concept. Although it is owned by Nike, it is not Niketown, but Salvation. It has unique signage and unique merchandise not found in other stores.
Some developers have threatened to take legal action if the City of Malibu moves forward. How would a California court and/or Supreme Court rule on Malibu’s ordinance? There are two court cases that have addressed this issue.
The 9th Circuit, which has jurisdiction in California, in a 2003 opinion, upheld an ordinance enacted in Coronado, Calif. The Coronado ordinance caps the number of formula restaurants and treats formula retail stores as a conditional use. The court stated, “[The] primary purpose was to provide for an economically viable and diverse commercial area that is consistent with the ambiance of the city, and that it believed the best way to achieve these goals was to subject to greater scrutiny those retail stores that are contractually bound to use certain standard processes in displaying and/or marketing their goods or services, and to limit the frontage area of these businesses to conform with existing businesses.”
In 2008, the 11th Circuit Court overturned an ordinance enacted in Islamorada, Fla., but the ordinance in that case, “effectively prevented the establishment of new formula retail stores,” and “[a] facility limited to no more than 2,000 square feet or 50’ of frontage [as required by the ordinance] can not accommodate the minimum requirements of nationally and regionally branded formula retail stores.” An independent retail store in Islamorada tried to enter into a contract to sell its property to a developer seeking to establish a Walgreens drug store in the same footprint as the mixed-retail store, but the local ordinance prohibited this.
The 11th District Court stated, “The Dormant Commerce Clause prohibits regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273 (1988). That court found that although preserving small town community is a legitimate purpose, Islamorada could not demonstrate “that it has any small town character to preserve,” as there are a number of pre-existing formula retail establishments and there is no historic district nor any historic buildings in the vicinity of plaintiff’s property.”
We became a city in 1991 because we wanted local control and to have elected officials who will act to protect and preserve Malibu for generations to come. Malibu is not an urban city, but a small town.
Should our City Council take action to keep Malibu unique or will Malibu look like every other town in 2020? Malibu needs everyone to voice their opinion to Jsmith@ malibucity.org by April 11, 2013.
According to Wikipedia, there are 2,019 Applebee’s restaurants operating in the US. What do you want our elected officials to do? Speak up now or go to Applebee’s later. You decide.