Measure R Ruled Illegal, No Word Yet On Appeal

A rendering of the Whole Foods project, which includes a 24,549-square-foot market, four smaller commercial buildings and 220 parking stalls. 

Measure R has fallen, once again leaving no legal barrier to the Whole Foods in the Park project from breaking ground in the Civic Center, as soon as the final judgment comes down on that ruling at the end of July.

A unanimous decision made in the Court of Appeal of the State of California on Wednesday, June 21, ruled that Measure R was illegal and, as of June 27, there is no word as to whether there will be an appeal to the California Supreme Court.

The controversial formula retail ordinance that earned close to 60 percent of votes back in November 2014 was designed to curb chain stores in the Malibu Civic Center — limiting them to 30 percent of retail shops — while also allowing voters to approve any developments over 20,000 sq. ft.

In 2015, Measure R was tested after the Park at Cross Creek, developers hoping to build a Whole Foods and other retail shops in the Civic Center, sued when their plans were voted down following a Measure R-sanctioned citywide vote. In December of that year, Measure R was ruled illegal by Superior Court of California, County of Los Angeles Judge James C. Chalfant, with the final judgement coming down in April of last year. In essence, Chalfant’s ruling was that Measure R violated due process for business owners. “Restrictions are a condition based on the nature of the owner, not the property, and they are unlawful,” part of the April 2016 decision stated.

Intervenors on behalf of Measure R advocates, Dru Ann Dixon-Jacobson, Carol Moss and Michele Reiner, took over the appeal, with the City of Malibu pledging up to $75,000 toward the effort, in spring 2017. “I want to hear what the Court of Appeals is going to say,” Council Member Laura Rosenthal said at the May 2016 council meeting, before casting her vote in favor of aiding in the Measure R appeal. “I think if we get the same answer the Court of Appeals gave us, that’s a very strong answer.” As of Monday, June 26, City Attorney Christi Hogin reported, the city spent a little over $55,000 toward the appeal.

On Wednesday, a judgment by the Court of Appeal of the State of California held that Measure R was illegal, on the grounds that it removes power from the City of Malibu and violates due process for business owners.

“Measure R is really about project-by-project review — which would otherwise be subject to administrative, not voter, approval — in the guise of a specific plan,” the judgement read, later adding, “Measure R not only withdraws administrative authority but it also ads ‘layers’ to the administrative process.”

Later, the judgement says that the “establishment-specific” nature of the permits granted by Measure R is “contrary to well-established principles.” In other words, there is legal precident to say it’s illegal to allow one type of business somewhere but not the same type of business in the same place.

Now, the question remains as to whether there will be an appeal of the three-judge panel’s decision released Wednesday, but that decision will likely not be made for a number of weeks.

“The [court’s] decision is out but it’s not final for 40 days,” Hogin explained to council Monday. “The city would have 10 days after that if the city were to request the [California] Supreme Court to review the decision … You have until the end of July.”

Hogin explained that in the time until the city’s decision, she and her legal team would be “analyzing the decision to see how it affects [council’s] abilities to legislate in these two areas” — namely, chain store density and largescale developments.

Council determined it would hold the decision whether or not to launch an appeal in open session in July.

As for intervenors, a statement on their behalf was mailed out to the public on Thursday, June 22, stating the group was analyzing next steps.

“Despite the voters’ clear desire to weigh in on developments that could fundamentally alter our community, the Court of Appeal yesterday issued a ruling upholding the lower court’s decision against Measure R,” the email, sent by “Save Malibu,” stated. “The city council and the city attorney are analyzing the decision, as are we. Our newly-elected councilmembers ran on a pro-preservation platform — in addition to considering legal options, we encourage our leaders to also consider legislative action to preserve Malibu.”

Reiner could not be reached for comment by the time The Malibu Times went to print.

If the city and intervenors do not appeal, the path will open for developer Steve Soboroff and the Park at Cross Creek to break ground, though Soboroff did not immediately respond to requests for comment by the time The Malibu Times went to print.

This is an updated version of the story “Measure R Ruled Illegal — Again” published online June 21.