Measure R Ruled Illegal, ‘No Legal Barrier’ on Whole Foods Project

From City Hall to the streets of Malibu, the voting booths and the courthouse, Measure R has gone through the ringer — and rung up quite a price tag — but the wrangling may be over, since a judge has ruled the ordinance illegal.

Measure R, the controversial formula retail ordinance that placed a 30 percent cap on the number of chain stores in shopping centers citywide and created a voter-approval requirement for specific plans of new commercial centers to be built in Malibu if they measure over 20,000 sq. ft., was ruled illegal by Superior Court of California, County of Los Angeles Judge James C. Chalfant. 

“The court has sympathy for Measure R’s goals,” read a portion of Chalfant’s judgment. “The city’s citizens wanted to preserve the community’s unique small-town and rural character.”

Chalfant, however, went on to declare Measure R “invalid.”

“Measure R’s restrictions are a condition based on the nature of the owner, not the property, and they are unlawful.

“The court will issue a declaratory judgment that Measure R is invalid and in injunction preventing the city from enforcing Measure R.”


Measure R was approved in November 2014 and hit the books in January of this year, after earning 60 percent of votes in the general election. 

A similar ratio of voters — over 57 percent — voted against the specific plan for Measure W, nicknamed Whole Foods in the Park, a project that would bring a supermarket and other shops to the Civic Center. Measure W was considered the litmus test for Measure R, as it was the first project to undergo the general vote.

Last Wednesday, Dec. 16, the day after Chalfant’s preliminary decision came down, City Attorney Christi Hogin spoke to The Malibu Times about the implications of the judge’s decision, which could affect whether Measure W could go through.

“The city council approved everything that had to be approved before Measure R came into existence, and also approved a specific plan and put it before voters, as required by Measure R,” Hogin said. “Now, the court is telling us that the city cannot require a voter-approved specific plan in order to entitle the development, so now we’re back to pre-Measure R requirements, which as far as I know, the Whole Foods Market has all of those.”

In other words, said Hogin, should the judge’s decision become final, “there are no legal barriers.”

The specifics of the decision come down to arguments against the ordinance’s requirement for voter-approved specific plans.

“The court said … That is not allowed because it violates due process [and] does not result in a fair hearing,” Hogin explained.The other issue with Measure R came from the formula retail limitations, which included not allowing the transfer of a conditional use permit (CUP) from one allowed chain store to another, such as from a Starbucks to a Peet’s Coffee.

“If Measure R had allowed to get a CUP for just any chain restaurant or any chain coffee house or any chain retailer, that would be OK,” Hogin explained. “But because Measure R had the burden of a CUP for every chain tenant, [the judge said] that didn’t make sense.”

The suit, which Hogin argued on behalf of the ordinance against lawyers representing local developers Malibu Bay Company and The Park at Cross Creek, cost about $100,000 for the city to defend, according to Hogin’s estimates. 

A statement by Attorney Marshall Camp, one of the attorneys representing the plaintiffs in the case, appears to declare hope that the Whole Foods project would move forward.

“Our clients have spent decades improving Malibu for all residents. They seek to build desirable, low-impact, environmentally sensitive developments that comply with the city’s land use laws and procedures, and in some cases go far beyond what is required,” Camp wrote. “Now that the court has spoken, our clients look forward to continuing to work with the city and the people of Malibu to make good things happen.”

Measure R’s proponents, including vocal backers Rob and Michele Reiner, on behalf of advocacy group Save Malibu, have held their ground, expressing confidence that the battle is not over yet.

“Measure R was carefully crafted to meet all legal requirements and was overwhelmingly voted into law by 60 percent of Malibu voters after a vigorous debate and vetting by the Malibu City Council and City Attorney,” a statement from the Reiners reads. “Save Malibu believes that the Malibu City Council will support the overwhelming opinion of the Malibu citizens expressed in two elections and the City Attorney will prevail in the Appeals Court and Supreme Court if required.”

There is no word as to whether the city will move toward an appeal, a decision that must be made by City Council.

“The city council would be the ones to decide what comes next,” Hogin explained, “and we haven’t met with them yet. There’s no rush at the moment.”

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