Lawyers discuss legal issues of propositions
By Laura Tate/Associate Editor
Proponents for Measure P, the Right to Vote on Development Initiative, failed to send a legal representative to a roundtable hosted by the Malibu Bar Association (MBA) to discuss legalities of the measure as well as Measures N and O on Oct. 19.
Jeanette Maginnis, president of MBA, in a prepared statement said: “It is dissappointing that the proponents of Measure P could not be present to participate in this roundtable discussion regarding the legal aspects of the measures.”
The roundtable was one of a series of public forums held to discuss the measures and for opponents and proponents to give their arguments in support of or against the measures. The Malibu Township Council hosted a forum on Oct. 14, where attorney Ted Vaill, an opponent of P, said he and David Kagon, chair of the No on P Election Committee (NoPec), were not given fair time to explain their side of the issues at hand.
This time around, at the Beaurivage restaurant where the roundtable took place, they had a full two hours to themselves to present their concerns about Measure P.
In her statement, Maginnnis said in late August/early September the MBA was requested by P proponents to host the roundtable in conjunction with the Township Council. She said the MBA agreed. However, proponents did not want the MBA to co-sponsor the event, but support it.
“As a neutral body, the Malibu Bar Association cannot support any initiative, candidate or political group,” said Maginnis in her statement. “Therefore, the MBA decided to hold the roundtable with a neutral moderator, former Mayor Jeff Kramer.”
Kramer is a highly respected trial lawyer, and also a former councilmember.
According to a letter sent to the MBA by Marilyn Dove, president of the Malibu Right to Vote Initiative, an invitation was not received until a few days before the meeting and their attorney was not available. Dove said she wanted to be present herself as a community member, but she had prior commitments which she could not change.
Both Kagon and Vaill brought up several legal issues, including possible violations of constitutional and legislative laws.
In Dove’s letter she addresses the legal issues brought up by the two: “… this initiative was drafted by two of the leading political law firms specializing in the drafting of initiatives for land use in California. They have assured us of the legality of their draft and they are experts specializing in this field.”
Furthermore, “… we have had the drafts reviewed by two other election law firms who further dealt with legality and issues raised, and again assured us that historically, initiatives such as this one are always attacked as to their legality, regardless of the opinions presented by the political opposition with developers support. It is the similar general smokescreen attack such as “we hear you have stopped beating your wife,” forcing one to be defensive of an untruth.”
On the legislative side, Kagon and Vaill said that Measure P could possibly violate the California Permit Streamlining Act. The act was enacted to expedite the permit application process for builders and developers.
With P, any commercial development more than 25,000 square feet would have to go to the voters for approval, therefore violating the 180 day deadline under the act for action by the city. This could open up the city to lawsuits for violation of the act. Proponents say that a special election can be called to expedite a decision. However, Vaill said the wording of Measure P calls for general elections, which take place every two years.
“I think that the law firm that drafted P forgot [about] the permit streamlining act,” said Vaill in a telephone interview. “The interrelationship [of the act] upon the measure.”
“The reason P is illegal,” said Kagon in a memo “is because, contrary to law, it gives the voters administrative (non-legislation) adjudicatory power.
“The voters decision is not based upon any public hearing conducted by the voters or findings made by the voters,” he continues. “It is not an orderly judicial review process because due process and law requires notice and hearing. Neither the property owner nor the court to which he may appeal has any findings on which to base a decision as to why the voters voted as they did.”
Both Vaill and Kagon said N does not violate the streamlining act because it covers development agreements, not regular applications for permits on development. Vaill cited the Gov. sect 65867.5 code that allows a development agreement to be presented to voters for approval.
And if P did pass, with the assumption that special elections could be called to vote on development, Vaill pointed out that each election could cost as much as $35,000.
The constitutional concern raised dealt with due process of law. Kagon stated that according to the Constitution, under the Civil Rights Act, a citizen has the right to develop their property.
He gave an example of a person who is turned down by voters under Measure P, then goes back to redesign and brings it back for a vote, or perhaps brings the issue before the courts, maybe doing this several times without ever really knowing why they were turned down. Eventually a judge could say that it could be classified as “taking of property” and the city would have to buy the property from the person wishing to build, which is called inverse condemnation
Another legal issue discussed, albeit briefly, was the legality of having nonresidents collect petition signatures for Measure P.
But the lawyers were not sure whether it was legal or not.
Kramer, in trying to present the opposition’s side, as they were not present, suggested perhaps some people may feel that the City Council is “out of step,” and that P proponents may believe that Measure P is a safeguard against the council.
Kagon responded by saying the people [of Malibu] have the opportunity to vote out a councilmember if they don’t like them or their policies.
As far as legal issues against N, Kagon said he has not heard of anything that the measure would create problems. On O, he said he has heard “no organized, or disorganized opposition, for that matter.”
The measures:
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Measure P, if passed, would give voters of Malibu the right of approval on all commerical development of 25,000 square feet or more.
Measure N, called a countermeasure by proponents of P, would give voters the right of approval on any commercial or commercial/residential development agreement (whether on single or multiple parcels) which is more than 30 acres in size.
Measure O is an advisory measure to approve a $15 million general bond to purchase open land for parks or ball fields.