November ballot initiative hits first major obstacle

The November ballot initiative, designed to force all large commercial developments onto future ballots, arrived at its first major test this week when Malibu City Attorney Steve Amerikaner returned to the City Council with his written legal analysis of the controversial measure.

“In my opinion, there is a high likelihood that a court will find the initiative ordinance unconstitutional . . . ,” said Amerikaner.

That, and several other perceived legal flaws in the proposed ballot measure, immediately set off a legal brawl with the backers of the initiative, whose attorney, Bradley Hertz, faxed a written response to The Malibu Times summarily characterizing the city attorney’s legal opinions as follows: “Supposed legal attacks on the initiative should be seen for what they really are — political attacks.”

The council has been previously somewhat skeptical of the ballot measure being pushed by Gil Segel, Marilyn Dove and several on the Malibu Coastal Land Conservancy. They had earlier instructed the city staff, including the city attorney, manager, planning director and others, to advise them as to the legal, financial and administrative impacts of the initiative so that councilmembers could decide if they want to write a ballot argument in opposition to the initiative.

Amerikaner’s analysis pointed out several legal problems with the initiative, which, if his predictions are correct, could pose major legal hurdles for initiative backers.

Amerikaner said in his analysis: “There are substantial uncertainties about the meaning and scope of the initiative . . . ” Certain provisions of the initiative are “susceptible to two or more reasonable interpretations” and it “appears likely” that litigation will result.

To put it into non-lawyer-like language, assuming the initiative passes, the losers in any subsequent land battle will, more likely than not, end up suing the city. And, because of the ambiguities in the language, they may have a reasonable chance of success in the courts of overturning decisions by the voters or the city.

According to the city attorney, because the way the initiative is worded, and the election requirements that it imposes, it may run afoul of a couple of specific state laws, which could result in certain projects being automatically approved. The voters of Malibu, even if they pass the initiative, cannot change state law. Two of the principal state laws, the Permit Streamlining Act and the Subdivision Map, both of which became law with heavy input from the construction industry, require that cities take action on permit applications within specified periods of time. If they don’t, the projects may be deemed approved; in fact, approved without conditions.

Amerikaner’s reading of the initiative is that it could, in certain circumstances, stumble over these state-imposed time limits with significant negative possibilities, which means that developers might be able to manipulate the initiative law to produce exactly the opposite of what was intended by the initiative.

Probably most important, Amerikaner said there are parts of the initiative that are of “questionable constitutionality.” The specific words he uses in his advice to the council is are: “In my opinion, there is a high likelihood that a court will find the initiative unconstitutional . . . ,” referring specifically to the portions of the initiative that would permit voters to decide about variances, conditional use permits, or subdivision map approvals, all of which are considered non-legislative acts.

“It is well-established that the California courts will invalidate any effort to place before the voters a non-legislative act,” said Amerikaner, underlining this part in his analysis, perhaps to emphasis his opinion that this portion of the initiative may be particularly legally precarious.

Hertz was sharply critical of the city attorney’s memo to the council. In his faxed response to the Times Hertz said the initiative was drafted by two prominent law firms: Manatt, Phelps & Phillips and Bagatelos & Fadem and met all constitutional, statutory and common law legal principals. He added that, “Proponents and supporters of the Malibu Right to Vote on Development Initiative stand behind their petition and ask that the voters not be fooled by the political rhetoric and scare tactics.”

We phoned back to inquire whether or not the opposition was going to have a written legal response to the legal questions raised in the city attorney’s memo, but by press time we had not received a reply.

In a meeting held Monday at City Hall for The Malibu Times and the Malibu Surfside News, also attended by the city attorney, manager and planning director, both Surfside reporter Bill Koeneker and myself had an opportunity to ask questions and follow-up questions in an informal setting.

Questions arose about certain projects, particularly Civic Center commercial projects that were already in the development pipeline. For example, the Malibu Bay Company is pursuing a dual-track in the development of their Civic Center properties.

On one hand, they’re attempting to negotiate a development agreement with the city, but they also simultaneously have applications in to develop the Chili Cook-off site and the Ioki parcel adjacent to the current City Hall. Amerikaner was clear that the people of Malibu have a legal right to vote on and reject the development agreement if they so choose. However, what’s not yet clear is how the initiative would impact the other applications, including the MBC applications that are already being processed, since they include some things that can be legitimately voted on by the people and some things that are highly legally suspect for a ballot.

When asked how he could be candid with the council in a situation where he might later be called on to defend the very same ordinance that he was criticizing, Amerikaner said he saw his responsibility to give the council the very best legal advice he could.

Since, by law, he had to give them this advice publicly, and since there is no pending litigation, his summary was in effect: You give them your best judgment and let the chips fall where they may.

This was significantly different than Hertz’s opinion that the legal analysis given the council was politically driven.

Additionally, in City Manager Marilyn Leucks’ memo, analyzing the initiative, she indicated that there would not be any financial impacts from the initiative, but was also clear the analysis did not include possible legal costs, which they decided could not be estimated because of their speculative nature.

The Malibu Times is the first newspaper in Malibu, serving the community since 1946.

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