Guest Editorial: Analysis of Measure R

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Letter to the Editor

Measure R, which will appear on the November ballot, is a legally and constitutionally deficient proposal that will harm the interests of Malibu and its citizens. 

I spent most of my 40-plus-year legal career litigating cases like the ones that will certainly be brought challenging Measure R if it is approved by voters.

Legal Analysis 

The Malibu City Attorney’s excellent legal analysis demonstrates convincingly that Measure R is vulnerable under both the U.S. and California Constitutions. It discriminates against certain types of retailers and grants an unexplained, last-minute favor to a specific shopping center. Measure R would require voter approval of projects over 20,000 square feet. That new requirement presents a potential death knell, which can make the property owned by project applicants effectively worthless. 

The inevitable legal challenges would be lengthy and costly, especially to the City of Malibu, forced to defend Measure R, and could even wipe out Malibu’s $15-million reserve fund. 

As a litigator, the last-minute revision to Measure R exempting gross floor space between 1,400 and 5,000 square feet represents an especially appealing grounds for litigation. It is no coincidence that this exemption disproportionately favors the Malibu Village shopping center, which was sold (shortly after the revised Measure R was submitted to the City) for $120 million — a $45-million profit for the hedge fund developer.

Measure R’s sponsors refuse to indemnify the City for the costs of litigation defending Measure R, so Malibu’s citizens would shoulder the financial burden of paying for the litigation.

Is this how we want our tax dollars to be spent when there are so many other worthy public projects in Malibu, including the safety of our schools and PCH?

Public Interest Analysis

Putting aside those problems, does Measure R even achieve its own stated purpose of limiting chain stores? The City Attorney’s legal analysis demonstrates that Measure R would “allow unlimited formula retail businesses” in the many existing tenant spaces between 1,400 and 5,000 square feet found in Malibu today. Her calculations show that this could increase the commercial space devoted to formula retail businesses by as much as 83%.

I am even more concerned about specific planned projects. Malibu has no hospital or ER so we really need emergency medical care. Everyone who has ever had an emergency wishes Urgent Care were open more hours, but Urgent Care has been operating at a loss for years. Its annual operating deficit is more than $300,000. It simply couldn’t survive without generous charitable contributions to the nonprofit corporation that has made up its deficit. 

Urgent Care needs to have longer hours, a new and better facility, and a more certain financial foundation. A current project under consideration by the City Council provides that. Under the proposal, a new facility would be included in an 80,000 square foot project. The project would provide a 5,000 square foot, rent-free lease to Urgent Care’s nonprofit. Urgent Care needs only 2,500 square feet, so its nonprofit would sub-lease the remaining 2,500 square feet — probably to another medical office — and use the rents received to cover the annual deficit. 

Opponents say Urgent Care could build elsewhere in one of the existing shopping centers, but that is fallacious. There is no way that Urgent Care can meet the community’s needs and also obtain adequate funding, without being part of a larger project, exceeding the 20,000-square-foot limit. 

Then there is Whole Foods. The proposed Whole Foods would be about 25,000 square feet — roughly half the size of a normal Whole Foods market. There would only be 14,000 square feet of additional rental space surrounded by a 25,000 square foot park, which includes a playground with equipment for learning-disabled and an educational learning center. I have heard grousing about Steve Soboroff, the project developer, but Steve has a long history in Malibu and an exemplary record of community service. For example, while managing the Malibu Village, he provided below-market rents to the Malibu movie theater and Radio Shack, among others, in recognition of our community’s need for these kinds of services. And Steve has been a big supporter of community projects like Legacy Park, the library and the MalibuGreenMachine. I have nothing against Mr. Reiner, but has he shown a similar, long-term commitment to the community?

In short, the Malibu City Council has done a good job in deploying its leverage to broker the kinds of deals outlined above. There is no need for the counterproductive rules that Measure R would impose and the costly legal battles that would ensue. Measure R should be rejected by the voters.