Malibu City Hall

The image of developers lining up earthmovers to invade the Malibu Civic Center has probably kept Measure R proponents up at night since learning on April 5 that the voter-approved formula retail ordinance was struck down in court. However, a May 10 appeals court ruling should have slow-growthers breathing a sigh of relief.

News broke late Tuesday that Measure R would be back in effect in the City of Malibu while an appeal of the April decision making the formula retail ordinance illegal works its way through court. 

A panel of three judges signed the decision, which came about after interveners filed written papers asking for the ordinance to go back into place during the appeal process.

The decision, which stated the “writ of supersedeas is granted,” essentially places a stay on the earlier decision, which would have kept the law from being enforced anywhere in the city.

Questions as to what the latest court decision means for the city have now arisen.

Can developers continue to process paperwork, in the hopes that the court will eventually uphold its decision marking Measure R illegal?

Will an item directing city council to consider a new formula retail ordinance appear on any city council agendas?

Will the city join in the appeal, which was launched by interveners Michele Reiner, Carol Moss and Dru Ann Dixon-Jacobson?

Will the timeline for the appeal be altered?

There are clues, at least, to the third question.

During the Monday, May 9, council meeting, City Attorney Christi Hogin said that the appeal would likely last 12 to 18 months.

Following the Tuesday decision, Hogin predicted that the case could move quicker than her prediction. 

“They’re going to move through this, maybe a little more quickly than most cases,” Hogin said. “Maybe it will be inside the year we estimated last night.”

The new time estimate was based on directives included in the decision. 

“The court discourages the parties from filing requests for extensions of time to file the appellate briefs in this matter,” the court document stated. “Absent a showing of exceptional circumstances, no extensions of time will be granted, and oral argument will be scheduled at the earliest possible date following the completion of briefing.”

About 60 percent of Malibu voters approved Measure R in November 2014, but developers including the Malibu Bay Company and the Park at Cross Creek filed a lawsuit against the ordinance soon after. 

That suit was successful, with Superior Court Judge James C. Chalfant striking down the formula retail ordinance on the grounds that some of the restrictions to development were unlawful.

“The court will issue a declaratory judgment that Measure R is invalid and an injunction preventing the city from enforcing Measure R,” the preliminary judgement from December 2015 stated.

That injunction is now not in effect.

“The judgement granting declaratory and injunctive relief, entered April 5, 2016, is hereby ordered stayed in its entirety, pending resolution of the appeal,” the May 10 ruling stated. 

(11) comments

LA Tweek

"Following the Tuesday decision, Hogin *predicted* that the case could move quicker than her *prediction*. "

You really can't make this stuff up.

Groucho would be proud:

Hail, Hail Freedonia!

Andy Choka

What Jon Right forgets to mention is that there are not 9155 registered voters who are alive or live in Malibu. Think about it , there are 13000 people who live in Malibu of which about 20 percent are under voting age and a similar number (or more) who do not register to vote. The voter rolls in Malibu are full of people who died years ago or moved away. Anyone who has worked on a call center during a local election knows this. The rolls are not purged for the simple reason that it makes it harder to mount a voter initiative when you have to get more signatures than are actually required. This is a remnant of the Barovsky regime. The vote was much more than 60% and the city council knows it . They just don't care. It is their way or the highway.

Steve Woods

Yes Jon, the beautiful thing about those who wear Black Robes is that they can overturn lower court decisions .
According to the last examination done by the Bureau of Justice Statistics, about 15 percent of civil trial decisions were appealed, about half by plaintiffs and half by defendants. Of these appeals, about 43 percent were dismissed or withdrawn, often due to the parties’ ­settling. In the ­remaining 57 percent, about a third were modified or reversed, either by an intermediate court or a court of last resort. Interestingly, verdicts in favor of plaintiffs were modified or reversed twice as often as judgments favoring defendants. So roughly one in five appealed decisions are invalidated, but most of those cases are sent back for a new trial, some with instructions for modifying .
The city has more than a 20 million dollar surplus so the city can easily walk and chew gum at the same time by helping the homeless while defending what so many other cities have adopted in regards to the increasingly popular Formula Retail Ordinances .
Soberoff could have avoided this problem if had stayed with in the sq foot allowances but he took a gamble ,thinking that Malibu residents would overwhelmingly vote for and approve a Whole Frauds which we now learn will only be a Half Foods (365 ) with 1/3 the products .
He spent $500,000 trying to mislead the community and still was overwhelmingly wrong in his assessment. Will he continue to underestimate Local resolve and determination? Malibu has a history of challenging out of town bullies who do not care about the negative consequences that will profoundly impact our community. Soberoff is not getting younger and cannot take his millions into the next world .He could be a hero and restore his land into an organic veggie and flower farm and live out his days in peace and harmony farming his land like Mr Rindge in the Book Happy Days .

Jon Right

Here is the link Wendi, where is yours? The point is, the only votes that really count are of those who wear black robes. A majority can not make illegal laws no matter how worthy they may think their cause. It appears that some people have forgotten that we fought a civil war because, in some states, a majority thought slavery was a good idea.

Certainly, those who did not vote were remiss, but they live here and their opinions must be valued. No doubt, a vote today would likely be different, nevertheless, it would still be illegal. We live under Constitutional law "not majority rules."

We should not spend another 75,000 to 100,000 dollars to unnecessarily fight this lost cause when there are others that will waste their own money. How about spending it on fixing the growing homeless problem or some other worthy cause that will actually help people in the community. Maybe that would not be an attractive alternative for "the coalition of the disaffected," that like to play the local political game, but it would be a better way to spend the people's money.

Wendi Dunn

Actually Jon Wrong is Wrong yet again. The tally for measure R was 1954 out of 3297 registered voters. That is 59.3%

Then, when Soberoff spent aprox. $500,000 to have his cronies "educate" the community on how the new sweet deal of a "365 off brand lable" Whole Foods Concept store would be just swell for us, 1575 out of 2748 voters said NO THANKS and voted down Measure W. That vote turned out to be 57.4%

Nice try Mr. Wrong.

Steve Woods

Gee Jon ,good to see you are catching up on how the democratic system of voting works . Only the ones who vote get counted. There were more YES votes than No Votes by a Landslide margin .Even if the Yes votes won by only one vote ,it still passes
Thats Life Jon , you ARE the Minority !!

Hopefully Hogin and the City will NOT appeal jointly with the interveners . At this point they cannot be trusted to keep their promises or passionately pursue a vigorous case in their half hearted attempt to lead from behind .
With the questionable ethical shenanigans that Palos Verdes City Attorney Christi Hogin has displayed in the illegal parkland case as reported in the Daily Breeze and Pennisula News , it would be better to have an Attorney who can be trusted in representing the residents rather than developers interest . Hogin has failed Malibu residents desire to enact a growing national trend of Formula Retail Ordinances enjoyed by dozens of other cities across the United States .
If the city won't, the resident majority will.

Marshall Thompson

Well, Jon, if you don't vote, then you have no Right to complain, hmmmm?

Jon Right

This article is once again misleading. The assertion that "60 percent of Malibu voters approved Measure R" is just not true. It was less than 60 percent of the Malibu voters "WHO VOTED," big difference. In fact, only 29% of Malibu's 9155 registered voters voted in favor of "R." If only 435 had voted along with the 1830 "No" voters, it would not have past. Today, knowing that the courts would declare "R" illegal, and the discontent it has caused, it is very unlikely to have passed. So, City Leaders and the Malibu Times should be very careful when they say that "R" has overwhelming community support.

In any case, it looks like the City will be off the hook for further damages, provided they don't appeal. There are consequences to injunctions. The "R" proponents will do the dirty work for them, but those same activists may also be held responsible for damages to the plaintiffs if their appeal should fail. It is not surprising the Appellate Court would hold off the pouring of concrete until all of this is sorted out. We have not even started the Federal case, that will illuminate the Constitutional issues

Thomas Smith

I have to agree with Mr. Woods on this issue, he is right that the Residents voices are not heard by those elected to hear, and we won't take this lying down peacefully nor will we go gently into the night while the Land around is scavenged by those who then profit going back to their homelands (( that where they would NEVER LET the Evil Americans touch or destroy))! With NO respect whatsoever to the City Representatives or their seemingly paid for/paid off Attorney as ALL seem slack and unresolved on an issue that they have a constitutional obligation to protect. Real Estate Agents like ants seem to swarm in overpopulation in our Malibu home making this beautiful place victim to two factors. Humans and their unending greed. Say what you will, pretend what you want, if we don't put water to this flame, it will burn the Landscape to the ground!

Marshall Thompson

Where is the effort for a public fund to purchase the remaining civic center land to keep it as permanent open space and recreational land? THAT is the ultimate and fair solution.

Steve Woods

Once again,Malibu Residents had to step in and do what our City, elected officials and city Attorney would not . This does not bode well for the current city council who may want to run for re-election in November .They had their chance to represent their constituents but once ,they again blew it .
It may sink in one day to Out of Town Developers and Out of State Investors that Malibu residents have never been welcoming to those who want to shove their mega project plans down our throats .Attention future Developers and Investors ,take note that the Property you invested in may not be as valuable as you were banking on.
The Spirit of May Rindge lives on !

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