Several people have asked me why, when over 60 percent of the voters cast their ballots against the Whole Foods project, it appears that City Council is not going to appeal the court’s decision that went against the vote. After all, in a democracy, doesn’t the majority win?
The simple answer is that “no,” the majority doesn’t always win. The majority can’t vote away the minority’s rights if the Constitution or some other law protects those rights.
For example, Congress couldn’t pass a valid law that said no Muslims can be admitted to the U.S., nor could a California legislature pass a law that said no Asian could be admitted to the State of California. At one time, there were laws like that, and they were considered legitimate and not racist, but that was years ago. If you ever bought an older house and checked your chain of title, you probably would find some restrictive covenant that said that the house could only be owned by a member of the Caucasian race, and that people who were black, brown or Asian could only live in the house if they were servants. The U.S. Supreme Court has since changed those rules and practices.
Those Constitutions — both Federal and State — and State statutes also apply to rules about property and development. The state has a statutory scheme to try and maintain an orderly development of property and also, at the same time, to protect the rights of the citizens to oppose things. In Malibu, we have a General Plan, which went through a long, involved process of public hearings and votes before it was finally approved. The General Plan allocates a certain amount of land to single family residences, some to multiple family developments, some to commercial of different sorts, some to industrial uses and some to institutional uses like schools. The property where the proposed Whole Foods sits is zoned commercial, which means once you meet all of the requirements, like size and lot coverage and sewers and such, you can build there.
Could we change that? Sure we could. We could have a ballot initiative or an ordinance that says, “No way will we ever let this property be developed.” The only problem is that once you say that, you have effectively destroyed the economic value and, in effect, you’ve bought the property. We might haggle a bit over price and what the property is worth, but if it’s in the Malibu Civic Center area, it is going to be expensive.
Sometimes there are exceptions, but we don’t appear to fit into them. We also could set up a land trust and buy the vacant land, as some cities and areas have done. We probably could stall, stall, stall, raising all sorts of objections to the project and beat the developer into the ground, which sometimes works. But when you have well-heeled developers who own the land, they don’t buckle that easily. Or, as a last resort, we could negotiate with the developer, agreeing to let the project go through, providing they provide other benefits to the community, which is often what happens. Time is money to most developers and they would typically take less than 100 percent to get the project done quickly.
In any event, it would seem that nothing is going to happen very quickly. Most any new development in the Civic Center is going to have to be hooked up to the new sewer system and at its speediest, that’s probably at least a couple of a years a way.
So where does this leave Measure R and the lawsuit going on in State court? The trial judge sitting on the case who heard the evidence decided that Measure R was illegal, and he based that on several grounds, any of which is enough for an appeals court to agree with him. Although the city has almost 60 days to decide what they want to do, it doesn’t appear they want to appeal. Frankly, I’ve heard that they think it’s a loser and I’ve heard many lawyers say the same thing, but no one knows for sure. We’re all just reading tea leaves.
The judge did let the Reiners and a couple of others intervene, which means that they could carry on with the appeal on their own. But the judge refused to stay the project, so theoretically they could build once they have all the permits, and if they lose on appeal, they might have to tear it out.
As a last resort, the city could draft and pass its own ordinance, but that is looking harder to do. The proponents of Measure R and the prior ordinance Measure W want everything they proposed to be put in the new ordinance. Essentially, the city is saying that’s crazy and that since the judge already kicked it out once, he’ll probably do it again if we send back the same thing. The sides could get together and try and negotiate a deal, but I suspect everyone is just going to sit until we see who gets elected to the City Council in November.
I know this is a longwinded answer to a simple question, but some things are not always as simple as we would like them to be.