City Wants Measure R Lawsuit Thrown Out

Malibu City Hall

The City of Malibu has wasted little time in its response to a legal challenge raised by developers who say the Measure R retail ordinance is unlawful, announcing on Thursday that city attorneys have filed a motion to dismiss all claims in the federal lawsuit.

Measure R, the controversial new city ordinance that places a 30 percent cap on the number of chain stores permitted to operate in Malibu and requires voter approval for commercial developments over 20,000 square feet, was originally not supported by public officials, with the exception of then-Mayor Skylar Peak.

That all changed the morning after Election Day, once the ballots were counted and the ordinance won over 59% of votes. Since November, city staffers and elected officials have held an unwavering line of defense for the new law, and are now launching their legal defense.

“The people of Malibu spoke clearly at the ballot box about their desires for future commercial development, and the city will defend the law vigorously against challenges,” said Mayor John Sibert in a statement released by the city.

The lawsuit, which was filed the first week of January on behalf of The Park at Cross Creek LLC (owned by Steve Soboroff) and Malibu Bay Company, came less than a week into the new year began and just one month after the new law hit the books.

Soboroff and his co-plaintiffs allege the ordinance is unlawful on several grounds, including violating the U.S. Commerce Clause, and that it takes power away from elected officials.

“It is arbitrary, discriminatory and lacks a reasonable and rational relationship to a proper legislative purpose,” said Cox, Castle & Nicholson attorney David Waite, who filed the suit. “Under the provisions of this misguided measure, developments are no longer subject to any standards other than the whim of the electorate. In so doing, Measure R divests the city’s elected leaders of their proper and lawful government functions pertaining to local land use and development.”

City Attorney Christi Hogin contends that the lawsuit was filed prematurely.

“The property owners rushed into federal court before the City had a chance to implement Measure R,” said City Attorney Christi Hogin in a statement. “The lawsuit claims that there is no way that Measure R can be implemented without running afoul of the constitution, and we believe that is simply not true.”

Hogin and her team are anticipated to have a busy year of litigation on behalf of the City, with the City Council allocating an additional $400,000 for legal litigation services during the mid-year budget in January, bringing the total amount paid to Hogin & Jenkins to nearly $1 million in 2014-2015.

According to the motion to dismiss, Hogin met with legal counsel for the plaintiffs on Jan. 20 but they were unable to resolve the issue, so the next step for city attorneys is to request the suit be thrown out, on the grounds that Measure R neither discriminates against interstate commerce nor unfairly discriminates against large developments. According to the document, none of the nine complaints filed by Cox, Castle & Nicholson have any substantiation.

A decision is expected later this spring.