Moving On From Measure R

The Whole Foods development was located on the northwest corner of Cross Creek Road and Civic Center Way. 

It was decided last week that Malibu’s now-infamous formula retail ordinance, still known by the moniker “Measure R,” had met its demise once and for all. 

On Wednesday, Aug. 9, the California Supreme Court officially declined to hear an appeal of a decision striking down the law as unconstitutional, leaving no further move for proponents of the beleaguered formula retail ordinance, according to City Attorney Christi Hogin, who confirmed the news Thursday. 

As of Aug. 9, there was no legal barrier to construction on the Whole Foods and the Park project in the Malibu Civic Center—but council is already working hard to fill the void with a new, legal ordinance.

At the Monday, Aug. 14, city council meeting, council had the opportunity to make decisions regarding how to move forward with its own formula retail ordinance and enact design standards in Malibu’s business district. An item already on council’s agenda offered options for the city to create its own replacement ordinance, but seemingly everyone in attendance at the meeting felt a conflict between wanting to act quickly and wanting to find a legal and agreeable ordinance.

“Basically, what I’m saying is, yes, I want to get this done. I want to get this done legally,” Planning Commissioner John Mazza told council during public comment. Mazza, a longtime outspoken proponent of Measure R, offered suggestions to council on how to proceed, including seeking input from the community. “There’s words to tweak… But what’s really important is to get public input and public consensus on what’s to be done in downtown Malibu.”

Mayor Skylar Peak seemed to agree during council’s deliberations.

“I think there’s a little bit of urgency sort of related to it, but I don’t want to make a mistake here,” Peak said.

In the end, council came up with the following schedule to lay out a new formula retail ordinance and Civic Center design standards:

1. October: Send a proposed formula retail ordinance before the Malibu Planning Commission.

2. November: Schedule a workshop for both the city council and planning commission to learn about and discuss a Civic Center specific plan overlay district.

3. December: Meet to discuss Civic Center design guideline suggestions originally presented in 2014 and review the way other cities regulate their commercial areas.

In 2014, Hogin advised council Measure R would not hold up in court—a warning that went unheeded. In an interview this week, Hogin said she felt council had its mind in the right place to find a legal alternative.

“I think that the city council is sincerely interested in finding an ordinance that is effective and palatable,” Hogin said. “I don’t know if they’ll take my advice, but I know they’re serious about the effort to come up with something that works. This isn’t a game; we don’t want to end up in court. I can tell you, as city attorney, that’s the last place we want to be. Especially since we’re dealing with our own residents and our own property owners.”

Hogin confirmed the two-plus years of legal wrangling cost the city a grand total of $211,488.34 in legal fees and expenses. To give some perspective, the city spent the same amount defending Measure R as it allocated to local nonprofits through grants—including the Malibu Boys and Girls Club, California Wildlife Center, Malibu Community Labor Exchange, the Children’s Lifesaving Foundation, Malibu High School Shark Fund, Ocean Park Community Center (The People Concern) and others, this year. That amount totalled $216,500 in the 2017-18 budget.

Michele Reiner, one of the authors of the ordinance and one of the backers in its appeals, said in an emailed statement that the group’s “overarching goal has always been to protect Malibu’s unique environment.

“Our fight to preserve Malibu saw the people express overwhelming support for preservation time and time again, and I am hopeful that Measure R’s mandate will now guide the city council to take strong action on chain stores and mega-developments,” Reiner wrote.

In response to questions from The Malibu Times, Steve Soboroff, a developer of the Whole Foods and the Park project, said Whole Foods in the Park, LLC would not “make any comments now on the Measure R decision or the project itself.”