Battle looms over Malibu chain ordinance

The Malibu Country Mart is one of several shopping centers in the Civic Center.

After fielding hundreds of questions and criticisms from the public for four months, the City of Malibu planning department last week recommended that the Malibu Planning Commission support the controversial ordinance at its July 29 meeting and urge the City Council to pass it into law, according to a staff report issued on Tuesday of last week. 

Supporters of an ordinance, including citizen groups such as Preserve Malibu, which has led the charge to aid struggling, independent “mom and pop” stores, are hailing city staff ’s recommendation and believe flaws contained in the first draft have been mostly corrected. Meanwhile, developers and shopping center owners remain vehemently opposed to possible regulations, which they see as an infringement on economic freedom. 

“The ordinance, as framed, discriminates against national retailers, who provide needed goods and services, in favor of local merchants,” said David Waite, an attorney hired Civic Center businessmen including Michael Koss, Malibu Country Mart owner, Matt Khour y, owner of the Malibu Village, and Steve Soboroff, who has a project undergoing the permitting process to build a Whole Foods grocery store and associated office space on Cross Creek Road. 

But Preserve Malibu said the revisions toughened a law they deem necessary. 

“Staff was very careful to review, correct the first draft and assure that all provisions are legal and comply with the Coastal Act…residents look forward to the adoption of this ordinance, the needed improvement to the balance of retail in our Civic Center and the necessary protection for Malibu now and in the future,” the group said in a statement. 

Malibu’s Formula Retail Ordinance, in its latest draft, would require any new chain stores wishing to open in the Civic Center area to obtain a permit from the Planning Commission and be limited to 2,500 square feet. The definition of a “formula retail business” has been tightened from the first draft to classify a chain store as having 10 or more stores operating in the United States. The first draft defined a chain as having six or more stores in the Southern California region. 

Chains currently operating in the Civic Center would be grandfathered in under the law. But future chain stores would have to comply with various restrictions, including the square-footage requirement, and could face rejection from the Planning Commission. 

“Thus if Levis wants to open a store, it would be subject to the various restrictions (assuming it could open at all), whereas a local store that sells jeans, including Levis, would be subject to no restrictions,” Waite said Monday. 

Waite and his clients have stopped short of threatening immediate legal action if the ordinance passes, but he has stated in the past that such a law could lead to “balkanizing and fever-pitched litigation for many years to come.” 

Preserve Malibu has balked at charges that such regulations are illegal or discriminatory, citing a 2003 court decision that upheld a similar retail ordinance in the coastal town of Coronado, Calif. 

Regulating chain stores is a necessity in order to remain true to the city’s vision statement, which states that Malibu “is a unique land and marine environment and residential community,” according to the staff report prepared by Malibu senior planner Joseph Smith. 

“The elements that contribute to the formula effect conflict with and frustrate the city’s goals of remaining unique while promoting a diverse retail base within the Civic Center,” the staff report stated. 

Elisa Paster, a land use attorney with Santa Monica firm Gilchrist & Rutter who has been on the subject in other publications, said she does not believe regulating types of businesses in the Civic Center is the correct way to maintain a city’s character. 

“I’m having a hard time seeing how implementation actually occurs … if you think of everything that’s either exempt or grandfathered in, it’s a very small number that this is going to impact,” Paster told The Malibu Times

Only 3.7 percent of Malibu’s land is designated for commercial use, according to the city, but nearly half of that commercial land (43.5 percent) is in the Civic Center. 

The Planning Commission cannot legally pass the ordinance at its July 29 meeting, but its recommendation to the City Council will likely weigh heavily into whether Malibu’s City Council decides to pass the pivotal law. 

Preserve Malibu and other proponents remain intent on their original mission to pass the ordinance. If not, there are plans to put it in the hands of voters. 

“We know that we have an option if this doesn’t move forward to take this directly to the residents on a ballot,” the group said in a statement.