In the first major state court test of the legality of Measure R — which in November 2014, 60 percent of the Malibu voters wanted as our law — the judge hearing the case in Los Angeles Superior Court decided that the statute was illegal and restrained the city from enforcing it. If that decision holds up on appeal (assuming it is appealed), that means the recent ballot on Measure W (the Whole Foods in the Park measure) is also void and the developer Steve Soboroff can go ahead and proceed with development, unless a higher court steps in and stops it.
People have said to me, “How can that be? Doesn’t the majority rule, and didn’t a solid majority of Malibu voters vote for Measure R (which we used to call the Reiner Measure, because he was the most high-profile advocate for it)? And, also, didn’t we just vote down the Whole Foods in the Park project?” The answer is that the majority does rule, except when it doesn’t because there are certain basic rights that the majority can’t just vote away, which I understand is the kind of lawyer answer that drives clients crazy. So the real question is that is there some sort of basic right that the landowner has to develop the property, and who decides?
For the answer to those questions, you have to turn to the judge’s decision, and see what the judge did, what he said and his reasoning for striking down the ballot measure. Often reading the opinion is really not enough — you also have to read between the lines, and there always signposts along the way of every opinion.
First, you have to look at the judge who rendered the opinion, which in this case was James C. Chalfant. I don’t know him personally but you can make certain assumptions. There are only a few judges in the L.A. Superior Court who are assigned certain kinds of complicated land use cases, principally because it’s a complicated area of the law, with lots of statutes and conflicting case law, so the judges have to have a high degree of expertise, and also be very smart lawyers. As I read Chalfant’s 23-page opinion, it’s clear that this is not something he just knocked off quickly; he seemed to have worked long and hard on this, and struck down Measure R for several different independent reasons. That means the appellate court might disagree with him in part and agree with him in part, and that might still be enough to uphold his opinion.
What the judge said is that Measure R infringes on the Malibu City government’s right to make certain administrative decisions. There is a general plan and a Local Coastal Plan, both of which went through a long public process before enactment, and this initiative takes away the city government’s power in those areas, which the city gets from state law. The judge also found that the measure was overly broad and that there were no standards, meaning the voters could turn it down for any reason at all, which he said violates due process. Last, it required an illegal Conditional Use Permit because it wasn’t a use that was not permitted — it was just that certain people (national chains) were not permitted.
Now, trying to read between the lines, when I saw how the judge summed up the facts in the beginning of the opinion and indicated that the Whole Foods in the Park project had already spent $11.4 million acquiring and preparing the development, and that the other plaintiff — the Malibu Bay Company — had spent $66 million on acquisition and preparation, it was evident that, in the future, if Measure R was upheld, no developer in his right mind was ever going to develop any commercial property in Malibu because the costs of doing so were so high and the vote requirement created such uncertainty that it made no sense.
I know that there are people in Malibu who would say, “that’s wonderful, that’s exactly what we wanted.” The problem is that if we said directly by local ordinance that we were never going to allow any more commercial development ever, we would probably have to buy their land when they came up with a project that met the existing rules. Well, what we can’t do directly by prohibiting commercial development altogether, we also can’t do indirectly via something like Measure R, which, in effect, produces the same result but through a convoluted process.
What happens next is not yet clear. The decision could be appealed, assuming the city decides to appeal. If the city decides not to appeal, perhaps the Measure R people could appeal if they have standing to do so, or if the city stands aside and says to the Measure R people, “if you want to appeal, you pay for it.”
As I see it, there are some other more sensible alternatives, but that’s for another column.