Malibu City Hall

Measure R was ruled illegal this week in the Superior Court of California, County of Los Angeles, Malibu City Attorney Christi Hogin confirmed to The Malibu Times early Wednesday morning. 

Opponents of Measure R filed a suit against the city's formula retail ordinance in state court, a measure undertaken after their case against the City of Malibu was declined to be seen by a federal judge.

On Nov. 4, 2014, Malibu voters approved the initiative Measure R, which enacted a 30% cap on the number of chain stores in shopping centers citywide and created a voter-approval requirement for new commercial centers to be built in Malibu if they measure over 20,000 sq. ft.

Story developing.

(15) comments

Steve Woods

January 2014
City Attorney Christi Hogin called the suit “premature” but indicated that her legal team is up for the challenge of defending Measure R.
“I’m confident that the city will implement it in a way that’s consistent with the Constitutions of the United States and California, and I think it’s pretty quick on the trigger for property owners to run to the court and complain about it,” Hogin said.
Hogin scoffed when asked if an outside counsel could be needed to face the suit.
“Anyone who thinks I would shrink from a fight doesn’t know me very well,” Hogin said, adding, “I didn’t read anything in the lawsuit that surprised me or deeply troubled me.”
Hogin has no choice but to defend it

•Coronado, Calif., allows no more than 10 chain restaurants. A California appeals court upheld the restriction last year.

•In St. Paul, residents of the Grand Avenue Business District, an old neighborhood once served by streetcars, are working on a 10-year development plan. High on their list of concerns: Chain stores such as J. Crew, Restoration Hardware and Ben & Jerry's are taking over storefronts.

"We've been looking at formula-business ordinances as one of a range of options," says Merritt Clapp-Smith, a local resident who is working on the plan. "People like to come here because it's different, because they're not seeing things they're seeing elsewhere."

•Arcata, Calif., an old lumber town 280 miles northwest of San Francisco that was a center of the hippie movement in the 1960s and '70s, is full of cottage industries from jewelry and food products to recycled glassware.

The city's 17,000 residents want to keep it that way. In 1998, 55% approved a ballot initiative to form the City of Arcata Committee on Democracy and Corporations.

"Citizens were concerned about corporate power issues," committee chairman Paul Cienfuegos says. "There's a revulsion against what's happening all over the United States. You drive through pretty much any town and you go, 'Where am I?' "

After town-hall meetings, the city passed an ordinance that limits the number of chain restaurants. Arcata now has nine. One would have to leave before another could open.

Peter Cohen, a San Francisco community activist who helped write that city's chain-store legislation, says, "Now that ... a big city can do this ... it's going to become a much bigger trend."

Steve Woods

As long as we get a judge in a higher court that does not play in Soberoffs sandbox ,Malibu has a great shot of appealing this down town Los Angeles court house decision just like in many other cities that have adopted similar measures

A California Appeals Court decision upheld Coronado’s formula retail ordinance in June 2003 after several property owners challenged the law. The court ruled that the ordinance does not violate the US Constitution’s commerce and equal protection clauses, and is a valid use of municipal authority under California state law.

Most of the decision deals with the property owners’ contention that the law discriminates against out-of-state companies and thereby violates the Constitution’s dormant commerce clause. The court found that the law does not in fact “impose different regulations on interstate as opposed to intrastate businesses, nor does it distinguish between those businesses that are locally owned and those that are owned by out-of-state interests.” The court noted the law focuses on whether the store is contractually required to have standardized features, regardless of whether it is part of a national chain or owned by a California resident.

The court also ruled that the law did not have a discriminatory purpose. The ordinance’s lengthy preamble states that the city seeks to maintain a vibrant and diverse commercial district, and that the unregulated proliferation of formula businesses would frustrate this goal and lessen the commercial district’s appeal. The court concludes that this is a legitimate purpose, noting that “the objective of promoting a diversity of retail activity to prevent the city’s business district from being taken over exclusively by generic chain stores is not a discriminatory purpose under the commerce clause.”

The court also dismissed the equal protection and state law challenges, stating that the ordinance is rationally related to a legitimate public purpose.[thumbup]

Jon Right

Well, we do not have to guess anymore, the court has decided. Judge Chalfant was not impressed and flatly rejected Hogin's argument.

It is easy to call other people's money "a mere pittance." We should wait to see the cost of the Judgment that is ordered against the City, and then decide if it is "a mere pittance." There are consequences to losing a lawsuit and those consequences may determine how the City should proceed in the future.

Political activism can be very expensive, especially if they get it wrong. We should not forget these City Hall hobbyists who sold their narrow view to the voters. This experiment proves that just a few divisive activists, with their myopic views, can mislead the community and do a lot of damage. We rely on our elected representatives and their legal staff to protect us from them, in this case they failed.

Steve Woods

But a higher court may likely lean towards Christi Hogins dismissal :

"Article XI, Section 7 of the California Constitution authorizes a city to "make and
enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." The City's police power is sufficient authority to create a permit for a distinct use category of"Formula Retail Establishments."
Certainly, the City has business specific permits such as business licenses. It is the
distinctive character of this new land use category that creates the effects that the
regulations are designed to mitigate. Plaintiffs fail to present a cognizable legal theory to support their blanket claim that the CUPs required by Measure R conflict with California law. The legal defect cannot be rectified by amendment of the Complaint to allege additional facts.
Unabated, proliferation of chain stores could turn every town into AnyTown.
Measure R represents Malibu's attempt to tackle a real, current and growing threat to its community character. The California Constitution empowers cities to control
development for just this purpose. To be sure, Measure R may present challenges in its implementation; but the City is entitled to make it work, within the confines of the constitution. Plaintiffs fail to show that it cannot succeed. The United States Court, expressing its policy reservations over Prop 13 ("California's grand experiment"), emphasizes the court's limited role in the legislative process: If a measure "is not palpably arbitrary ... we must decline petitioner's request to upset the will of the people of California." For all of the reasons stated above, the City respectfully requests that this Court dismiss the Complaint and all its claims without leave to amend."

If our city attorney needs to tweek , amend or modify her legal case then she owes the Citizens of Malibu to do so and whatever cost are incurred will be a pittance compared to the nightmare of Out of Town Developers jamming unwanted urban sprawl down our throats. Just because Soberoff made a bad investment does not mean we have to be subjected to becoming an out -of -towner shopping destination with a road infrastructure that can not handle the increased traffic congestion that will degrade Malibu residents commutes , quality of life and property values.
Meanwhile more and more existing commercial buildings are joining the endless dust heap of vacancies from Trancas to Topanga . Never mind that Soberoff admitted that he would most likely have to subsidize a Whole Foods because a Whole Foods franchise can not survive in such a small demographic with 4 other markets that all cater to our organic needs .
Be careful what you wish for Mr Realtor

Jon Right

Here are a few relevant excerpts from Judge Chalfant's lengthy and well reasoned decision. It is very clear from his legal references, he does not want to be overturned on an appeal. We shall see if our City Council and City Attorney will continue to spend Malibu taxpayer money trying to beat a dead horse.

"Measure R is invalid because it unlawfully interferes with the City's administrative power, is overbroad by requiring submission to voters of project-specific information that is administrative in nature, and unlawfully attempts to circumscribe future City discretionary decisions"

"Measure R makes no effort to condition the CUP on a particular chain store's use of its property, but rather focuses on the CUP holder's status as a chain store, including formulaic color scheme, menu, array of merchandise, decor, facade, service mark, trademark, and uniforms. fj 177.66.130(e). This is illegal."

"Moreover, while Measure R permits a chain store to transfer a CUP when the chain store is sold to a new owner, this is a distinction between a business and its ownership, not a distinction based on property use. A fast food use by McDonald's is the same as a Burger King, and a coffee shop use by Starbuck's is the same as Peete's, but Measure R would prevent a CUP transfer between such chain stores. This, too, is unlawful."

"Measure R's restrictions are a condition based on the nature of the owner, not on use of the property, and they are unlawful."

"Declaratory relief is granted. The court will issue a declaratory judgment that Measure R is invalid and an injunction preventing the City from enforcing Measure R.”

Steve Woods

Thank You Mari Stanley for giving the City link to the Measure R complaint by the plaintiffs ( Soberoff and team ) . After reading the legal writings I don't think one has to be a lawyer to understand that the City's Motion To Dismiss the law suit should have prevailed and ended PERIOD ! There is nothing Un Constitutional about Measure R or any violations of the Interstate Commerce Act or any of the measures that other many cities have written into law . This case must be taken to a higher court and decided by a judge without any local bias towards local players .
And Susan, you are right , this City Council must not ignore its majority citizen mandates while vigorously and passionately pursuing an Appeal in the name saving Malibu from a generic homogenized AnyTownUSA .
Malibu is simply following legal precedents set by other cities in restricting generic ,homogenized commercial development and the adverse and dangerous traffic concerns that is unique to our constricted coastal road infrastructure . We the people of Malibu have voiced ourselves and we do not want the un restricted degradation that out of town developers are trying to shove down our throats in the form of an out of town Shopping destination

Susan Tellem

Be interesting to see which judges receive campaign donations from who...the bottom line is that the City Council ignored the citizens who in a great a majority voted for Measure R. Now will the city council listen to its residents?

mari stanley

Please correct the headline - the judge INVALIDATED the measure. There is a world of difference between the term used in the headline "Illegal" and the proper term as provided by City of Malibu via legal counsel.
Here is the official press release and the full ruling is available through a hyperlink to the City's website and subsection for Measure R.

Steve Woods

A higher court will examine all of the other cities who have successfully adopted similar measures and come to the conclusion that communities do have the constitutional rights to choose , vote , plan and determine their future.
Yes , it is not surprising that Soberoff would suit in a lower court especially considering all of his special connections he has made down town . Soberoff will not respect our communities choice to 'build for need , not for greed' even if it creates the negative consequences for the people that actually live here and have to deal with his un wanted urban sprawl.
Soberoff may encounter the next level of challenges if a higher court invites the legal teams from all the other cities who have adopted measures to protect themselves from run away commercial degradation. This case may cost the city in legal expenses but it will also cost Soberoff .
His gamble has an uncertain future but one thing he can count on, is the negative sentiment from the Malibu community that does not want his project shoved down our throats .
He may win in court but he loses in life

Rick Abrams

This story seems very important statewide. Could you please provide a link to the court's opinion or provide the federal court case number so that we may find the actual decision and the pleadings on the federal court's PACER system?

Jon Right

Unfortunately, there are those that promote the notion that Democracy is simply " majority rule." It is not. We have governing documents that guarantee our "unalienable rights." The mob does not get to decide.

This decision was predictable, many in the community understood the legal ramifications and the potential consequences of losing the argument in court. It is not just money that was at risk, it is the precedent that this decision sets. The next developer has been shown the way to the courthouse steps. No doubt, it will be a long time before anyone again listens to those gathering signatures in front of Ralphs.

Wendi Dunn

What Jon Wrong continues to fail to post is the fact that 60% of this communtiy voted this project down more than once.

Jon Right

Ah, the fat lady is warming up her vocal cords.

The City Council should act responsibly and find a way to settle this before a Judge decides the damages. That will be money that we will all have to pay for this misadventure. It will be far less costly to pay Soberoff's legal fees and expenses now, before another set of Judges tells Malibuites that they are not above the law or the U.S. Constitution. Included with his check should be a sincere apology on behalf of the misguided citizens of Malibu. Maybe, Reiner can get his SF law firm to kick back their Christmas bonuses to help pay for this fiasco... :)

The Council should ask, why the City Attorney gave them such poor advice? Remember, she said, "this is right in my wheelhouse," sure it is.

It is looking like we may be able to get a panini sandwich at Whole Foods and the Park after all.

Steve Woods

Lawyers for Soberoff , "They seek to build desirable, low-impact, environmentally sensitive developments that comply with the city’s land use laws and procedures, and in some cases go far beyond what is required."
Nothing could be farther from the truth and the residents of Malibu voted in two landslide elections to protest the corrupted claims by out of town developers and their naive supporters

Steve Woods

The City Council's first and foremost responsibility is to represent it's citizens ,not unwanted out of town developers who do not care about the negative consequences of Urban Sprawl and it's un acceptable gridlock . They need to hear us loud and clear that they will passionately and vigorously demand an appeal to a higher court with judges that don't play golf on the same golf courses as Soberoff . All the other cities who have similar ordinances must pool their legal resources to nip this anti democratic precedent in the bud .[angry]

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